Denham J.McGuinness J.Fennelly J.McCracken J.Kearns J.

THE SUPREME COURT[507/04]

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT, 1947

AND IN THE MATTER OF SECTION 62 OF THE HOUSING ACT, 1966,

AS AMENDED BY SECTION 13 OF THE HOUSING ACT, 1970DUBLIN CIRCUIT

COUNTY OF THE CITY OF DUBLINBETWEEN

DUBLIN CITY COUNCILPLAINTIFF/RESPONDENT

ANDJEANETTE FENNELL

DEFENDANT/APPELLANTTHE ATTORNEY GENERAL

INTERVENING PARTYAND

THE HUMAN RIGHTS COMMISSIONAMICUS CURIAE

JUDGMENT of Mr. Justice Kearns delivered the 12th day of May, 2005

This case concerns important issues of retrospectivity in the application of the European Convention on Human Rights Act, 2003 (hereinafter referred to as “the 2003 Act”), which came into law on the 31st December, 2003, by order of the Minister for Justice under Statutory Instrument 483/2003 made pursuant to s.9(2) of the 2003 Act. The case comes before this court by way of consultative case stated from the Circuit Court pursuant to s.16 of the Courts of Justice Act, 1947.

According to its long title, the purpose of the 2003 Act is to enable further effect to be given, subject to the Constitution, to certain provisions of the European Convention of Human Rights. The Convention itself was adopted by the State in Rome on the 4th November, 1950, and the Irish instrument of ratification was deposited on the 25th February, 1953. The Convention was then in form an agreement by the High Contracting Parties with one another. However, while the Convention was and is an effective agreement and statement of international law, the Oireachtas did not determine until 2003 that the Convention was to be part of the domestic law of the State. The 2003 Act, to which I will shortly refer in greater detail, does not purport to

incorporate the Convention directly into domestic law, but rather imposes an obligation that, when interpreting or applying any statutory provision or rule of law, a court shall, insofar as is possible, and subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions. The 2003 Act also provides that every organ of the State shall, subject to any statutory provision or rule of law, perform its functions in a manner compatible with the State’s obligations under the Convention provisions. A party may also seek from the High or Supreme Court a declaration that a statutory provision or rule of law is incompatible with the State’s obligations under the Convention provisions, and where such a declaration is made certain consequences as detailed in the Act then follow.

The case stated arises in the following circumstances.

On the 20th March, 1996, Dublin City Council, in pursuance of its obligations under the Housing Act, 1966, made a letting of a dwelling situate at 146 Balbutcher Lane, Ballymun, Dublin 11 to the appellant under a written tenancy agreement entered into on that date.

It was a term of tenancy agreement that neither the tenant, nor any member of her household, should cause any nuisance, annoyance or disturbance to any neighbours, their children or visitors or to Corporation staff. It was a further term of the tenancy agreement that if the tenant was evicted following a breach of this term, the tenant would be deemed for the purpose of rehousing to have deliberately rendered herself homeless within the meaning of s.11(2)(b) of the Housing Act, 1988, and as a result would not be provided with another home by the Corporation until such time as the Corporation might be satisfied that the evicted tenant and her family were capable of living and were agreeable to live in the community without causing a further breach of the condition.

Clause 26 of the tenancy agreement provided that the tenancy could be terminated at any time on the giving of four weeks notice by the tenant or the Corporation. To this end, a Notice to Quit could be served by the Corporation incorporating a demand for possession pursuant to s.62 (1) of the Housing Act, 1966.

A decision to serve a notice to quit in respect of the premises was made on the 13th June, 2003, and a Notice to Quit dated 26th June, 2003, was served on the appellant on the 7th July, 2003. The Notice to Quit demanded delivery up of the premises on the 1st September, 2003, and further contained a statement of the respondent’s intention to make an application under subs.(1) of s.62 of the Housing Act, 1966, in the event of the requirements of the demand not being complied with. While the Notice did

not specify any particular reason for termination, the Case Stated recites that the parties are agreed that alleged misbehaviour at the premises had led to the decision to serve the Notice to Quit.

The appellant remained in occupation of the said dwelling after the 1st September, 2003. Proceedings were issued to recover possession pursuant to s.62 of the Housing Act, 1966, as amended, by a summons dated the 30th day of October, 2003.

On the 12th December, 2003, the District Court made an order for possession of the dwelling under s.62 of the Housing Act, 1966, as amended. By its order, the District Court granted the respondent a warrant for possession of the said premises.

The appellant lodged an appeal to the Circuit Court of the 23rd day of December, 2003.

On the 31st December, 2003, the European Convention on Human Rights Act, 2003 (The 2003 Act), came into operation.

On the 16th June, 2004, the appeal came on for hearing before the Circuit Court (Judge Dunne) who directed an exchange of points of claim and reply.

On the 14th October, 2004, the appeal came on for hearing before the Circuit Court (Judge Linnane) whereupon Counsel on behalf of the respondent requested that the judge refer certain question of law arising on the appeal to this Court by way of case stated for the determination of the Supreme Court.

On the 26th November, 2004, the Case Stated was signed by the Circuit Court judge and the opinion of the Supreme Court is now sought on the following questions of law:-1. Do the provisions of the European Convention on Human Rights Act, 2003, apply to proceedings issued by the respondent pursuant to s.62 of the Housing Act, 1966, prior to the 31st December, 2003?2. Do the provision of the European Convention on Human Rights Act, 2003, apply to the proceedings pending before me which seek to obtain possession of the premises lived in by the appellant and her daughter but in respect of which the respondent has purported to terminate the tenancy prior to the 31st December, 2003?3. Is there an obligation on the court by virtue of s.2 of the European Convention on Human Rights Act, 2003, to interpret s.62 of the Housing Act, 1966, as amended insofar as is possible in a manner compatible with the States obligations under the Convention, upon an appeal taken in proceedings issued by the respondent pursuant to s.62 of the Housing Act,

1966, prior to the 31st December, 2003?4. If this honourable court answers question 3 above in the affirmative, is the effect of s.2 of the European Convention on Human Rights Act, 2003, that a local authority must adduce evidence in proceedings under s.62 of the Housing Act, 1966, as amended, justifying its decision to terminate a tenancy?

The Housing Act, 1966

Local authorities are housing authorities and are designated as such by the Housing Act, 1966. The definition of a housing authority for the purposes of the 1966 Act was amended by the Housing Act, 1988 and includes city councils of which the respondent is one.

The primary function and duty placed on housing authorities is to provide housing for those of limited means, or those who through disability are unable to provide accommodation for themselves. Housing authorities have powers also to improve, increase and upgrade the housing stock in the State. They may also make schemes of priorities for letting housing accommodation which must have regard to, inter alia, the requirements of those in need and which may also accord priorities to particular categories of persons in the letting of particular dwellings.

In order to enable housing authorities to carry out their functions in providing dwellings for those unable to provide for themselves, the Oireachtas gave effective means to housing authorities whereby they could recover possession of dwellings provided under the Act. The special machinery for that purpose is set out at s.62 of the Housing Act, 1966, as amended by s.13 of the Housing Act, 1970.

The relevant portions of s.62 of the Housing Act, 1966 (as amended) provide as follows:-

(1) In case,

(a) there is no tenancy in—

(i) a dwelling provided by a housing authority under this Act,

(ii) any building or part of a building of which the authority are the owner and which is required by them for the purposes of this Act, or

(iii) a dwelling of which the National Building Agency Limited is the owner,

whether by reason of the termination of a tenancy or otherwise, and (b) there is an occupier of the dwelling or building or any part thereof who neglects or refuses to deliver up possession of the dwelling or building or part thereof on a demand being made therefor by the authority or Agency, as the case may be, and

(c) there is a statement in the demand of the intention of the authority or Agency to make application under this subsection in the event of the requirements of the demand not being complied with,

the authority or Agency may (without prejudice to any other method of recovering possession) apply to the justice of the District Court having jurisdiction in the district court district in which the dwelling or building is situate for the issue of a warrant under this section…

(3) Upon the hearing of an application duly made under subsection (1) of this section, the justice of the District Court hearing the application shall, in case he is satisfied that the demand mentioned in the said subsection (1) has been duly made, issue the warrant.

As is clear from the foregoing, the section provides a simplified method whereby a housing authority can recover possession of a dwelling the subject matter of a tenancy. There is no requirement for cause to be shown before the housing authority can recover possession of a dwelling, nor is there any provision in the legislation for the sort of hearing before a court which normally attends, at least when it is opposed, the termination of a private letting agreement.

The statutory requirements where an application is made to the District Court for possession are, therefore, that the District Court must be satisfied only that the following conditions have been met:-(1) That it has been proven that the dwelling was provided by the local authority under the Housing Act, 1966;(2) That there was no tenancy in the dwelling;(3) That possession had been duly demanded;

(4) That the occupier had failed to give up possession;(5) That in the event of non-compliance, the demand made it clear that an application for a warrant would follow.

Once these matters are proved to the satisfaction of the District Judge, neither he (nor the Circuit Judge on appeal) has any discretion but must issue the warrant without inquiring into other matters.

In State (O’Rourke) v. Kelly [1983] IR 58 the constitutionality of s.62 of the Housing Act, 1966, was challenged on the grounds that subs.(3) thereof was an unwarranted interference in the judicial domain in that it imposed on the District Judge a mandatory obligation to issue the warrant, thereby depriving the District Judge of any real judicial discretion. That argument was rejected by the Supreme Court which held that it is only when the provisions of subs.(1) of s.62 have been complied with and the demand duly made to the satisfaction of the District Judge that he must issue the warrant. The court considered that s.62 was no different from many statutory provisions which make it mandatory for a court, on proof of certain matters, to make a specified order and that such legislative provisions are within the competence of the legislature.

Section 62 was further considered in Dublin Corporation v. Hamilton [1999] 2 IR 486. In that case, counsel on behalf of the tenant had advanced the argument that the word “duly” which appears in subs.(3) brings into play not just formal proofs but the entire question of whether the plaintiff is carrying out its statutory obligations of housing towards the defendant both in a substantive sense and in the sense of affording the defendant fair procedures, which might well connote a hearing on the merits in certain circumstances. In making this argument, Counsel for the defendant in that case relied on the general tendency of the courts to ensure that statutory obligations be fairly and constitutionally complied with. Thus it was suggested that a tenant is entitled to know the reason for the plaintiff’s desire to recover possession and that a District Judge should concern himself with whether the housing authority in ejecting the defendant was then in breach of its own housing obligations towards the defendant, so that if there was a breach of that obligation, particularly in the context of no provision of reasonable alternative accommodation, the application for the warrant could not be said to be “duly” made.

In rejecting these arguments, Geoghegan J. stated (pp. 493-4):-

“… it would seem to me to be both reasonable and constitutional that there be available to a housing authority a rapid method of recovering possession of any one dwelling provided by it without having to give reasons for so doing. The

local authority has to consider its overall management of housing and it owes an obligation to all the persons in need of housing as well as to any one individual. In that context, it is and ought to be entitled to plan its arrangements for providing housing and furthermore there may be very good reasons why confidentiality should be maintained in relation to any particular decision to recover possession of a dwelling provided by the housing authority even though the person, the subject matter of the warrant, may then become a person in need of housing. In that case obviously the obligation will then be on the housing authority to provide alternative accommodation as best it can. I also, of course, agree with counsel for the defendant that a housing authority must carry out its obligations in a proper manner and must not abuse its powers or discretion but if it does so, it would be subject to the remedy of judicial review. It is not a matter for the District Judge to consider in a hearing under s.62 of the Act of 1966. It has been argued that judicial review is a cumbersome and expensive procedure and that the ordinary person in need of housing might not even know of its existence but I do not think that that is any reason for importing into s.62 requirements which were never intended to be there.”

In reaching his conclusion, Geoghegan J. determined at p.494 that it would be:-

“inconsistent with the purpose of the section to interpret it in any other way than that formal proofs that the matters set out in this section alone are required and that the District Judge is not entitled to inquire into anything else. If there are wider complaints, there is another forum for dealing with them.”

More recently, in Byrne v. Judge James Scally (unreported, High Court, 12th October, 2000) O Caoimh J further confirmed (at p 33) that the procedures involved in an application under s.62 of the Housing Act are:

“…straightforward and relatively simple and involve certain straightforward proofs to be satisfied. Were the circumstances otherwise and were the District Court entitled in the exercise of its jurisdiction to enquire into the reasons for the service for the Notice to Quit then undoubtedly a different situation would pertain and a situation akin to that pertaining in the case of Stevenson v. Landy (unreported, High Court, Lardner J., 10th February, 1993) would apply whereby the requirements of constitutional justice would ordain that legal aid be granted. Essentially I come to the conclusion, contrary to the submission made Mr. O’Donnell that the case being presented by Dublin Corporation against the applicant was technical and

complex and warranted legal representation being granted to her, that a true examination of the facts reveals that the case being presented to the District Court was not complex and while the term “technical” has been used it simply relates to the procedures to be followed which were straightforward in themselves. This involved the proof of the tenancy agreement which would have been furnished to the applicant previously and secondly the service upon her of a Notice to Quit. These matters are proved by the production of the letting agreement and the Notice to Quit to the District Court judge.”

For many years, therefore, it is clear that the statutory process involved in an application for possession by a housing authority under s. 62 of the Housing Act, 1966 has survived constitutional and judicial scrutiny, not least because of the obvious need of a housing authority to be able to effectively manage and control its housing stock without being unduly restricted or fettered whilst so doing. Obviously a housing authority must not abuse its powers of discretion when exercising those powers and where it does so the proper remedy is that of a judicial review application to the High Court.

It goes without saying therefore that the position of the tenant of a housing authority compares unfavourably with that of a private law tenant under contract or under the Landlord and Tenant Acts, the Rent Restrictions Acts or a variety of other statutes. It may also be seen that the summary method whereby possession of such dwellings may be recovered, notably in circumstances where the tenant is regarded as having through misbehaviour brought about the termination of his own tenancy and thus forfeited the right to any alternative accommodation, may arguably infringe certain articles of the European Convention on Human Rights, and in particular, Articles 6 ,8 and 13 thereof, and also Article 1 of Protocol 1 (Protection of property) of the Convention.

Role of the Convention before the 2003 Act

The Convention entered into force on Ireland on 3rd September, 1953, and all optional Protocols, with the exception of the Twelfth Protocol, have been ratified accordingly. Ireland was the first Member State to accept the right of individual petition to the European Court of Human Rights in February, 1953, since which time twelve cases from Ireland have proceeded to final judgment before that court. A violation was found in nine of these cases, and no ultimate violation was found in three others. Prior to the 2003 Act, therefore, the Convention was said to be “binding on Ireland, but not in it”. The Government was obliged to accept the ruling of the European Court in judgments against it, but the Convention otherwise placed no direct obligations on public authorities. Furthermore, legislative, executive or

judicial measures, which appeared to conflict with the Convention, could not be the subject of a Convention- specific challenge in the domestic courts. Nor were the courts required to consider relevant Convention case law, although, of course, decisions of the European Court have frequently been cited over the years as persuasive authority for the guidance of Irish courts where a particular issue was not governed by any specific domestic statutory provision or rule of law. However, the bottom line was that those who sought to have Convention rights vindicated could only do so before the European Court of Human Rights in Strasbourg, with the added requirements that they first exhaust all domestic remedies and then make application within a strict six month deadline.

The classic statement of the Convention’s role in Irish domestic law prior to December, 2003, is to be found in the following passage from the judgment of Maguire CJ. in the case of In re Ó Laighleis [1960] I.R. 93 (which became the first case ever to be considered by the European Court of Human Rights in 1959), where he stated (at pp.124-5):-

“The insuperable obstacle to importing the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms into the domestic law of Ireland - if they be at variance with that law - is, however, the terms of the Constitution of Ireland. By Article 15, 2, 1°, of the Constitution it is provided that "the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.” Moreover, Article 29, the Article dealing with international relations, provides at section 6 that "no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas”.

The Oireachtas has not determined that the Convention of Human Rights and Fundamental Freedoms is to be part of the domestic law of the State, and accordingly this Court cannot give effect to the Convention if it be contrary to domestic law or purports to grant rights or impose obligations additional to those of domestic law.

No argument can prevail against the express command of section 6 of Article 29 of the Constitution before judges whose declared duty it is to uphold the Constitution and the laws.

The Court accordingly cannot accept the idea that the primacy of domestic legislation is displaced by the State becoming a party to the Convention for the Protection of Human Rights

and Fundamental Freedoms. Nor can the Court accede to the view that in the domestic forum the Executive is in any way estopped from relying on the domestic law. It may be that such estoppel might operate as between the High Contracting Parties to the Convention, or in the Court contemplated by Section IV of the Convention if it comes into existence, but it cannot operate in a domestic Court administering domestic law. Nor can the Court accept the contention that the Act of 1940 (i.e. Offences Against the State (Amendment) Act, 1940) is to be construed in the light of, and so as to produce conformity with, a convention entered into ten years afterwards. The intention of the Oireachtas must be sought in the conditions which existed when it became law.”

Thus, without suggesting for a moment that the Constitution and the Convention were in conflict, the provisions of Article 29.6 and Article 15.2.1 effectively insulated Irish statutes from attack in domestic courts on grounds of supposed incompatibility with Convention principles. However, while Ireland was the last member state of the Council of Europe to incorporate the Convention into domestic law, there is a very high degree of overlap between the guarantees contained in the Constitution and those in the Convention. In a sense therefore the Convention had a shadow and parallel existence to the Constitution in Ireland’s domestic law prior to December, 2003. Furthermore, Irish courts have been vigilant over the years to protect Convention-type rights by upholding similar or identical rights guaranteed under the Constitution. In noting this fact, author and senior counsel Gerard Hogan writes as follows in “ECHR and Irish Law” (Jordans , 2004) (at pp. 14-15):-

“Since the enactment of the Constitution in 1937, the Irish courts have, of course, been working within a system of judicial review of legislation which confers on them far- reaching powers of review. Outside, therefore, of the United States, the Irish judiciary have probably the longest and most extensive experience of judicial review of legislation in the common law world and over 80 individual statutory provisions, statutory instruments and common law rules have been found to be unconstitutional during this period. While it is true that there are other Council of Europe Member States with an elaborate domestic constitutional jurisprudence - Germany, Italy, Spain, Norway and Portugal come particularly to mind - there is probably no other Member State with a longer unbroken tradition.”

In a foreword to the same book, former President of Ireland, Mary Robinson, herself a distinguished human rights lawyer, writes as follows:-

“Even though Ireland ratified the Convention almost 50 years ago, it was the Good Friday Agreement and its commitment to equivalence of human rights protection North and South which meant that some form of incorporation of the ECHR into Irish law became a legal as well as a political imperative. The establishment of national human rights institutions - the Human Rights Commission in Ireland and Northern Ireland - as watchdogs on the development and implementations of law and policy is also crucial to the effective policing of the new human rights laws.”

It is perhaps appropriate at this juncture to note that the Court granted leave in this case to the Human Rights Commission to file written submissions and to make oral observations before this Court as amicus curiae, and also gave leave to the Attorney General to intervene in the proceedings, file submissions and address the Court in relation to the issues under consideration.

Before moving to consider the provisions of the 2003 Act, it is clear, on the facts of the consultative case stated to this Court, that the following Articles of the Convention are particularly engaged in the issues under consideration ,being, as already noted, Articles 6 ,8 and 13 thereof, and also Article 1 of Protocol 1 of the Convention.

The relevant portions of Article 6 (right to a fair trial) are as follows:-

“(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Article 8 (right to respect for private and family life) provides:- “(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well- being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 13 (right to an effective remedy) provides:- “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before

a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”

Finally, Article 1 of Protocol 1 (protection of property) provides:- “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”

The European Convention on Human Rights Act, 2003

The Convention was ultimately incorporated in Ireland at a sub-constitutional level in a form of indirect or interpretative incorporation adopted by the 2003 Act. This form of incorporation imitates to a large degree the form of incorporation adopted in the United Kingdom by the United Kingdom Human Rights Act, 1998.

Section 2 of the 2003 Act provides:-

“(1) In interpreting and applying any statutory provision or rule of law, a Court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.

(2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.”

Section 3 of the 2003 Act provides:- “(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.

(2) A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High

Court…and the Court may award to the person such damages (if any) as it considered appropriate…

(4) Nothing in this section shall be construed as creating a criminal offence.”

“organ of the State” is defined in s.1 and includes:-

“a tribunal or any other body (other than the President or the Oireachtas or either House of the Oireachtas or a Committee of either such House or a Joint Committee of both such Houses or a court) which is established by law or through which any of the legislative, executive or judicial powers of the State are exercised”

Section 5(1) provides:- “In any proceedings, the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of s.2, on application to it in that behalf by a party, or of its own motion, and where no other legal remedy is adequate and available, make a declaration (referred to in this Act as ‘a declaration of incompatibility’) that a statutory provision or rule of law is incompatible with the State’s obligations under the Convention provisions.

(2) A declaration of incompatibility -

(a) shall not affect the validity, continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made, and

(b) shall not prevent a party to the proceedings concerned for making submissions or representations in relation to matters to which the declaration relates in any proceedings before the European Court of Human Rights.”

The Act further provides that there is no obligation to pay compensation where incompatibility is established, but a successful litigant may apply to the Attorney General for compensation and the Government may appoint an adviser to advise on the amount of compensation (if any) to be awarded. The

Government also has the option of making an ex-gratia payment in cases where an incompatibility is declared to exist. Where a declaration of incompatibility is made, the Taoiseach is obliged to lay a copy of the declaration before the Dáil and Seanad within 21 days of the making of such declaration but there is no obligation on him to indicate what remedial action (if any) is to be taken.

Thus, impugned legislation or acts of public bodies will enjoy a presumption of compatibility with the Convention unless that presumption is rebutted by a litigant.

However, for present purposes, the critical issue to be determined is how s.2 (2) of the 2003 Act operates, if at all, to affect the present legal proceedings between Dublin City Council and its former tenant, Jeanette Fennell, given that they commenced in the District Court prior to the introduction of the 2003 Act, but will be determined on appeal by the Circuit Court at a time subsequent to the date when the 2003 Act became operative, particularly having regard to the fact that s.2(2) specifically provides that the duty to interpret laws in a manner compatible with the Convention applies to any statutory provisions or rule of law in force before the Act as well as to those laws coming into force thereafter.

In this regard, I am of the view, and indeed it is one with which all parties before the court are agreed, that the first three questions in the case stated may effectively be treated as one. Depending on the answer to that question, it may or may not be necessary for the Court to determine the fourth question.

Submissions of the parties

The submissions made on behalf of Dublin City Council and the Attorney General were to the same effect and may be summarised together.

It was pointed out, firstly, that the appellant had not sought to challenge by way of judicial review the decision of the respondent to terminate her tenancy in the dwelling, nor had the appellant sought a declaration that s. 62 of the Housing Act, 1966, as amended, was or is incompatible with the State’s obligations under the Convention. In invoking s. 2 of the 2003 Act, the appellant was effectively arguing that s. 62 of the Housing Act, 1966 must be interpreted so as to give effect to certain rights guaranteed by the Convention in respect of past events which occurred before the Act became operative. The decision to terminate the appellant’s tenancy was made and the application pursuant to s. 62 of the Housing Act, 1966 to recover possession of the dwelling was brought in accordance with the law as it then stood. To require that the Circuit Court apply the requirements of the 2003

Act would be effectively to require Dublin City Council to have carried out past events by reference to different legal criteria than actually applied at the time. This, it was submitted, would be contrary to basic principles of statutory interpretation and fairness. Section 9 (1) of the Interpretation Act, 1937 provides that when an Act of the Oireachtas is expressed to come into operation on a particular day (whether such day is before or after the date of passing of the Act), the Act shall come into operation at the end of day before such particular date.

It was further submitted that statutes are to be construed as applying only in cases or on facts which come into existence after the statutes become operative, unless a retrospective effect is clearly intended. This well established principle of statutory interpretation was emphasised in Maxwell (Interpretation of Statutes) (12 Ed., pp. 215-6) as follows:-

“An Act should not be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication”

A further quotation at pp. 220/1 was also relied upon:- “In general, when the substantive law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights”.

A retrospective statute was defined by Craies (Statute Law) (7th Ed., p. 387) as one:-

“Which takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty or attaches a new disability in respect of transactions or considerations already past.”

Particular reliance was placed upon the decision of this court in Hamilton v. Hamilton [1992] I.R. 466. The primary question which arose for consideration in that case was whether s.3 of the Family Home Protection Act, 1976 could apply to the conveyance of a marital home executed pursuant to a contract entered into three years before the Act came into operation. On the subject of retrospectivity, Henchy J. stated (at pp. 480/1):-

“…I find the relevant canon of interpretation at common law to be this. When an Act changes the substantive, as distinct from procedural law, regardless of whether the law is otherwise prospective or retrospective in its operation, it is not to be deemed to affect proceedings brought under the pre-Act law and pending at the date of the coming into operation of the Act, unless the Act, expressly or by necessary intendment provides to the contrary.”

Reliance was also placed upon a recent judgment of the House of Lords in Re McKerr [2004] U.K. H.L. 12. In that case, the House of Lords considered whether it had jurisdiction to make an order compelling the Secretary of State for Northern Ireland to hold a proper investigation into the death of the applicant’s father who had been shot by members of the R.U.C. in 1982. The case was founded on s. 6 (1) of the Human Rights Act, 1998 (which is analogous to s. 3 (1) of the 2003 Act), which provides that it is unlawful for a public authority to act in any way which is incompatible with a Convention right. The House of Lords unanimously held that the Act was not retrospective and that where a death had occurred before the 2nd October, 2000 (being the date upon which the Human Rights Act, 1998 came into force in the U.K.), the obligation implicit in s. 6(1) of the Human Rights Act, 1998 and Article 2 of the Convention to carry out a proper investigation into the death of the applicant’s father did not apply.

It was further submitted that in Lelimo v. The Minister for Justice, Equality and Law Reform [2004] 2 I.R. 178, Laffoy J. had followed the reasoning in Re McKerr to hold that the respondent’s decision to make a deportation order and the order itself, which had predated the coming into operation of the 2003 Act though due to take effect after the operative date, were immune from challenge under that Act.

Considerable reliance was also placed by counsel for the respondent on a further House of Lords decision in Wilson v. First County Trust Limited (No. 2) [2003] 3 W.L.R. 568. In that case a loan agreement entered into between the parties in January, 1999 was in breach of regulations made under s. 60 of the Consumer Credit Act, 1974 in failing to state the correct amount of credit, so that s. 127 (3) of the Act barred the court from enforcing the agreement. It was argued that the absolute bar on the enforcement infringed the right guaranteed by Article (6) (1) of the Convention to a fair trial and the right to the protection of property under Article (1) of Protocol 1 of the Convention. Section 3 (1) of the Human Rights Act, 1988 (which corresponds with s. 2 of the 2003 Act) requires:-

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

Referring to that section Lord Nicholls of Birkenhead said (at paras. 17-19):-

“On its face s. 3 is of general application. So far as is possible legislation must be read and given effect in a way compatible with the Convention rights. Section 3 is retrospective in the sense that, expressly, it applies to legislation whenever enacted. Thus s. 3 may have the effect of changing the interpretation and effect of legislation already in force. An

interpretation appropriate before the Act came into force may have to be construed and revised in post- Act proceedings. This effect of s. 3(1) is implicit in s. 3(2) (a). So much is clear.

Considerable difficulties, however, might arise if the new interpretation of legislation, consequent on an application of s. 3, were always to apply to pre-Act events. It would mean that parties’ rights under existing legislation in respect of a transaction completed before the Act came into force could be changed overnight, to the benefit of one party and the prejudice of the other. This change, moreover, would operate capriciously with the outcome depending on whether parties’ rights were determined by a court before or after 2 October, 2000. The outcome in one case involving pre-Act happenings could differ from the outcome in another comparable case depending solely on when the cases were heard by a court. Parliament could not have intended s. 3 (1) should operate in this unfair and arbitrary fashion.

The answer to this difficulty lies in the principle underlying the presumption against retrospective operation and the similar but rather narrower presumption against interference with vested rights.”

Counsel relied upon this passage to argue strongly that the appropriate approach is to identify the intention of parliament in respect of the relevant statutory provision, rather than simply classifying an enactment as retrospective or not retrospective. The greater the unfairness that might follow from applying the relevant statutory provision to past events and transactions, the more it is to be expected that the legislature will make it clear if that is intended. In the instant case, although the Oireachtas had provided that s. 2 of the 2003 Act should apply to existing statutory provisions, it had not taken the further step of specifying that it should apply to past events or transactions, causes of action accruing or legal proceedings pending before the section came into force.

Insofar as the appellant had emphasised the de novo nature of the appeal mechanism before the Circuit Court, and the fact that the Act came into effect in the intervening period between the Order of the District Court and the appeal before the Circuit Court, reliance was placed on the following comments of Hobhouse L.J. in Wilson v. First Country Trust Limited, at p. 607 to the following effect:-

“On the appeal, the substantive question will remain as it was in the lower court applying, in accordance with the basic

principle I have identified earlier, the municipal law in force at the time of the events or conduct complained of or to be applied to it by reason of some later statutory provision having retrospective effect. The time at which the appeal is heard is irrelevant; equally irrelevant is which of the parties it is that has appealed. On this point as well, the Court of Appeal was mistaken. The fact that the appeal was heard after the Act had come to force did not alter what they have to decide or the municipal law which governed the dispute between the parties”.

If the defendant’s case was to be upheld, it was submitted that the principle of legal certainty would be undermined. It could not be the case that the coming into effect of the Human Rights Act, 2003 would operate to alter the legal position of parties to proceedings that are pending before a court. This assumption would mean that the only way in which the Circuit Court judge could now apply the provision of s. 62 in a manner compatible with the Convention would be by altering the respective positions of the parties in those proceedings. It was further submitted that there was a clear public interest requirement that there be finality in litigation and that a party’s rights and obligations on the day that proceedings are commenced or entered into must be sufficiently clear and unambiguous, and not subject to retrospective alteration.

It was finally submitted that the Circuit Court proceedings should not be seen as detached from and unconnected to the District Court proceedings. They formed part of a continuum of an engagement of legal rights which had its origin in the service of a Notice to Quit. Section 62 of the Housing Act contains no reference to the role of the Circuit Court and in circumstances where the Circuit Court rejected the tenant’s appeal the practice was to merely confirm the warrant of the District Judge. There was no question of issuing a fresh Notice to Quit before bringing the appeal to the Circuit Court. They were not proceedings which could ever have been commenced in the Circuit Court having regard to the express terms of s. 62 of the Housing Act, 1966. It followed, therefore, these parties submitted, that the first three questions should be answered in the negative.

In the course of his replying submissions, counsel on behalf of the appellant devoted a great deal of time to arguments suggesting that various Convention articles, notably Article 6 and 8, were engaged by the process in which Dublin City Council was engaged namely, legal proceedings for the recovery of possession of a dwelling which constituted a ‘home’, notably in circumstances where the Council could deny alternative accommodation to the tenant because of alleged misbehaviour. A large number of UK authorities and decisions of the Strasbourg Court were opened to the court to show the scope and application of Article 8 (1) and 8 (2). Those arguments

and decisions are however of little assistance in determining the first question which this court must decide. That first question is solely concerned with the issue of the retrospectivity of statutes in domestic law.

The submissions made on behalf of the appellant on the issue of retrospectivity are essentially as follows. The decision to terminate Ms. Fennell’s tenancy was made, and was admitted to have been lawfully made, prior to the coming into effect of the Act of 2003. However, that fact, and indeed the fact that the District Court hearing from which the appeal was taken took place before the 31st December, 2003 should not, it is submitted, inhibit or restrict the scope of the appeal presently pending before the Dublin Circuit Court. That appeal is by way of a full re-hearing and the fact that it is an appeal from a decision arrived at prior to the coming into effect of the Act is not a relevant consideration. In the context of a full re-hearing, the appellant is entitled to raise any issue or point of law available to him, even if that point was not available or relied upon in the inferior court.

In D.P.P. (Nagle) v. Flynn [1987] I.R. 534 this Court had the opportunity, in the context of a consultative case stated from the Circuit Court, to consider the nature of an appeal before the Circuit Court in a summary matter. The accused in that case, John Flynn, had sought to raise a defence he had neglected to raise in the District Court (related to the making or otherwise of a valid complaint in respect of a summary offence). Although the context under consideration was an appeal in a summary criminal matter rather than in a matter of summary jurisdiction such as that presently under consideration by the Circuit Court, it was argued that the following dictum of Finlay C.J. was both apposite and appropriate to the present case when at p. 539 of the report, he stated as follows:-

“It seems to me inevitably to flow from (the point of defence ought to be raised by the defendant) that he could not conceivably be debarred from raising it on the Circuit Court appeal merely because he had not raised it in the District Court. The hearing in the Circuit Court is truly a hearing de novo and there could be no conceivable grounds consistent with justice in limiting an appellant on an appeal by way of a de novo hearing to points of defence raised by him or on his behalf in the lower court.”

The Convention argument under the 2003 Act was, it was submitted, exactly the sort of point to which these observations relate – a new point became available as a result of the 2003 Act which could, it was argued, now be relied upon in a hearing where everything has to be done afresh.

In the appellant’s written submission, it is suggested therefore that the correct approach for this court to take is to note:-

(i) That the Council has served a Notice to Quit which had the effect to terminating Ms. Fennell’s tenancy.(ii) That the service of the Notice to Quit was in accordance with the provisions of the tenancy agreement which allowed either party to serve the Notice to Quit, giving four weeks notice of termination of the tenancy.(iii) The Council has not claimed to have afforded to Ms. Fennell the rights set out in Article 6 or Article 8 of the Convention.(iv) What limited judicial review as might have been available in consequence would not have addressed the issues current in these proceedings.(v) That the removal of Ms. Fennell and her daughter from the premises can only take place on foot of a court order and that the application for that court order is presently pending before the Circuit Court.(vi) That in the exercise of her jurisdiction pursuant to the Housing Act, the Circuit Judge must, insofar as is possible, subject to the rules of law in relation to such interpretation and application, interpret her discretion in a manner compatible with the State’s obligations under the Convention provisions and take judicial notice of decisions of the Court of Human Rights.

The thrust of the appellant’s case therefore is to the effect that the relevant decision and the substance of this case are to be found in the prospective decision of the Dublin Circuit Court and the removal of the appellant from her dwelling. That is the decision which will deprive the appellant of her ‘home’ and give effect to the views of the City Council in this case. That being so, it was submitted that there was no true retrospectivity issue for the appellant to overcome.

There could be no unfairness, it was further submitted, in adopting an approach whereby the 2003 Act was applied. There had been no attempt to identify what unfairness might result to the City Council from doing so. On the other hand, if the Dublin Circuit Court was held not to be entitled to have regard to Convention rights, Ms. Fennell, herself a disadvantaged member of society, would then be confined to the remedy and expense of having to bring a case to the Court in Strasbourg. This would be a patently unfair requirement which could be readily avoided by permitting the Circuit Court judge to have regard to the 2003 Act.

On behalf of the Human Rights Commission, whose counsel adopted and supported all of the appellant’s submissions, it was also argued in the alternative that s.2 (2) of the 2003 Act built retrospectivity into the Act by requiring that existing legislation was also subject to the obligation imposed on a court by s.2 (1) to interpret laws in accordance with Convention principles..

Decision

At the outset I am satisfied to accept the appellant’s submission that the point under consideration in the first part of the Case Stated was not one which was amenable to a judicial review application. It is not the lawfulness of any decision of Dublin City Council or the District Court that is in issue in these proceedings. The proceedings are concerned with the manner in which the Circuit Court judge must now approach and deal with the appeal before her court in circumstances where the legal process for the recovery of possession of a dwelling was set in train by Dublin City Council prior to the introduction of the 2003 Act in December, 2003. There is no suggestion that the Council abused its discretionary powers or made its decision in some unlawful manner.

Accordingly, two basic issues come under focus, being, firstly the retrospective or non-retrospective character of the 2003 Act and, secondly, the nature of proceedings which take place by way of appeal from the District Court to the Circuit Court.

Retrospective Interpretation of the 2003 Act – Is There a Constitutional Impediment?

The long title to the 2003 Act confirms its sub-Constitutional character in expressly stating that it is an Act-

“..to enable further effect to be given, subject to the Constitution, to certain provisions of the Convention….”

Article 15.5 of the Constitution provides:- “The Oireachtas shall not declare acts to be infringements of the law which were not so at the time of their commission”

This provision is reflected in a more specific way in the Convention itself in relation to criminal offences by Article 7 which provides:-

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.”

However, a number of case decisions in this country, including decisions of this court, suggest strongly that the constitutional prohibition of retroactive penal legislation includes also breaches of the civil law. In McKee v Culligan [1992] 1 IR 233 this court held at p.272 that Article 15.5 constitutes:-

“an expressed and unambiguous prohibition against the enactment of retrospective laws declaring acts to be an infringement of the law, whether of the civil or the criminal law.”

Commenting on this finding, Hogan & Kelly (The Irish Constitution) (3rd Ed.) state (at p 129):-

“Thus, while Article 15.5 is principally viewed as operating in the sphere of the criminal law, this judgment shows that the Oireachtas is similarly disabled from declaring acts to be infringements of the civil law. This means, for example, that the Oireachtas may not retroactively create a new civil wrong, or declare past acts to have been an infringement of some civil statutory prohibition.”

In Dublin Heating Co. Ltd v Hefferon [1993] 3 I.R. 177, Murphy J found that to retrospectively declare innocent actions to be reckless trading, which, by virtue of the provisions of s.33 of the Companies Act, 1990 is now an infringement of the law, would amount to a breach of Article 15.5 of the Constitution, and that therefore the Oireachtas could not have intended to make s.33 retrospective in effect. In the course of his judgment Murphy J concluded there was no reason why a tort could not be described as an infringement of the law, stating (at p187):-

“Furthermore, in practical terms a citizen might have as much and more reason to be aggrieved if his actions which at the time of their performance were wholly innocent were to attract substantial civil liability than he would have had if the same actions were to be transmuted into a civil activity punishable by a nominal fine.”

Reverting to McKee v Culligan, which was a case concerned with the interpretation of s.3 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, it is important also to stress that the Finlay CJ expressly stated that Article 15.5 did not contain, nor was it to be interpreted as containing, any general prohibition on the retrospection of legislation in general; its application was confined to situations where apparently innocent actions are retrospectively construed as constituting infringements of the law.

Where under the Human Rights Act, 1998, a public authority acts ‘unlawfully’ by acting in a way incompatible with a Convention right, a victim may under s.8 of that Act claim damages or compensation against that authority. A similar right exists, of course, where a breach of the Convention is found to have occurred by the Court in Strasbourg. Under the 2003 Act, a victim may also, under s.3, if no other remedy in damages is available, institute proceedings to recover damages in respect of any contravention of that section in the Circuit Court or High Court, and the Court may award such damages as it considers appropriate (s.3(2)).

These consequences, which arise where a breach of the 2003 Act is found to have occurred, strongly suggest that the 2003 Act should, for the purpose of complying with the spirit of Article 15.5, be interpreted as having

prospective effect only. Moreover, in the recent reference to this court under Article 26 in the Matter of the Health (Amendment) (No.2) Bill, 2004, the court confirmed (at p. 32 of its judgment, delivered 16 February, 2005) that had there been provisions in the Bill which rendered unlawful the failure of any person to pay health charges in the past, such provisions would have infringed Article 15 of the Constitution.

Retrospective Nature of Statutes

S. 9(1) of the Interpretation Act, 1937 provides:-

“Where an Act of the Oireachtas, or a portion of any such Act, ..is expressed to come into operation on a particular day (whether such day is before or after the date of the passing of such Act..), such Act, portion of an Act…shall come into operation at the end of the day before such particular day”

Of some importance also is s.21(1) of the 1937 Act which provides:- “Where an Act of the Oireachtas repeals the whole or a portion of a previous statute, then, unless the contrary intention appears, such repeal shall not

…(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under the statute or portion of a statute so repealed…

(e) prejudice or affect any legal proceedings, civil or criminal, pending at the time of such repeal in respect of any such right, privilege, obligation, liability, offence, or contravention as aforesaid.”

These are the clearest statutory signposts in our jurisdiction pointing against retrospection, but they do no more than reflect the well-established presumptions that statutes do not operate retrospectively unless a contrary intention appears. I have already in summarising the submissions referred to citations from Maxwell (Interpretation of Statutes) and Craies (Statute Law) to that effect.

Bennion (Statutory Interpretation) (4th Ed) contains the following useful commentary on this topic (at section 97):-

“The essential idea of a legal system is that current law should govern current activities. Elsewhere in this work a particular Act is likened to a floodlight switched on or off, and the general body of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of

retrospective laws. If we do something today, we feel that the law applying to it should be the law in force today, not tomorrow’s backward adjustment of it. Such, we believe, is the nature of law. ‘…those who have arranged their affairs…in reliance on a decision which has stood for many years should not find that their plans have been retrospectively upset’.

Dislike of ex post facto law is enshrined in the United States Constitution and in the constitutions of many American states which forbid it. The true principle is that lex prospicit non respicit (law looks forward not back). Retrospective legislation is ‘contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law.’ The basis of the principle against retrospectivity ‘is no more than simple fairness, which ought to be the basis of every legal rule’. Retrospectivity is artificial, deeming a thing to be what it was not. Artificiality and make-believe are generally repugnant to law as the servant of human welfare. So it follows that the courts apply the general presumption that an enactment is not intended to have retrospective effect. As always, the power of Parliament to produce such an effect where it wishes to do so is nevertheless undoubted.”

The strongest statement to the effect that statutes should not operate retrospectively appears in Maxwell (Interpretation of Statutes) (12 Ed) at 215:-

“It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication.

The statement of the law contained in the preceding paragraph has been ‘so frequently quoted with approval that it now itself enjoys almost judicial authority.’

One of the most well-known statements of the rule regarding retrospectivity is contained in this passage from the judgment of R.S. Wright J in re Athlumney (1898) 2 Q.B. 551: ‘Perhaps no rule of construction is more firmly established than this – that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be

avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.’ The rule has, in fact, two aspects, for it “involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.”

That is not to say that past events cannot be taken into account in a statute which nonetheless remains prospective, as Barron J noted in O’H v O’H [1990] 2 I.R. 558 at p.563:-

“In considering whether a statute should be construed retrospectively, a distinction is to be drawn between applying the new law to past events and taking past events into account. To do the latter is not to apply the Act retrospectively”

Thus in Antonelli v Secretary of State for Trade and Industry [1998] Q.B. 948 the court had to consider that provision of the Estate Agents Act 1979, which authorised the making of an order prohibiting a person from engaging in estate agency work if he appeared unfit to practice on various grounds, including that he had a previous conviction for an offence involving fraud or dishonesty or violence. It was held that a conviction incurred before the commencement of the Act could be taken into account as it indicated unfitness just as much as a conviction incurred after the commencement would.

These are the general principles, about which the parties have not really disagreed. In fact there has been the further agreement from counsel that the 2003 Act has the effect of creating substantive rights and that it is not merely a procedural change to existing law. Nor have counsel for the respondent or the Human Rights Commission demurred from the assertion that the vested rights of the Dublin City Council (both in the property and in the litigation) are liable to be affected if a retrospective interpretation is given to the 2003 Act. In this regard Craies further states (at p 398) that –

“It is a well “recognised rule that statutes should be interpreted, if possible, so as to respect vested rights”

While this is the general position, an Act may nonetheless either be expressed to have retrospective effect or to clearly so intend. That being so it is appropriate to now consider the terms of the 2003 Act itself, and to some extent also, the Human Rights Act 1998 in the United Kingdom to see if any such intent is evident.

The 2003 Act in Ireland – the Human Rights Act, 1998 in Britain

Section 2(1) of the 2003 Act provides that-

“In interpreting…a court shall ...do so in a manner compatible with the States obligations under the Convention provisions”

Section 3(1) of the 2003 Act, states that:- “Every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention provision.”

Section 4 of the Act states that “Judicial notice shall be taken” of decisions of the European Court of Human Rights and that a “court shall, when interpreting and applying the Convention provisions, take account of the principles laid down in those decisions.

On the face of it, the language and terminology of the Act appears to suggest prospective obligations only. None of the sections are directed to backward-looking obligations. No express provision for retrospective application of the Act to past events is anywhere to be found in the Act, other than insofar as s.2(2) provides that existing legislation is also to be interpreted by reference to Convention principles. However, no additional provision appears in s.2(2) suggesting that a retrospective application of the section is envisaged.

In a matter of such far-reaching importance it would be a considerable omission on the part of the draftsmen not to include a provision for retrospective application to past events if such was the intention. If it was the intention, I have already indicated my view that it would have left the 2003 Act open to attack on the basis that a retrospective application would infringe Article 15.5 of the Constitution.

. A very strong reason for believing that retrospective application to past events is not intended is to be found in some of the analogous provisions of the Human Rights Act, 1998 in the UK. Section 6 of that 1998 Act provides that:-

“it is unlawful for a public authority to act in a way which is incompatible with a Convention right”.

Section 7(1)(b) of the 1998 Act provides that a person who claims that a public authority has acted in a way which is made unlawful by s.6 may rely on the Convention rights concerned in any legal proceedings where he is a victim of the unlawful act. Section 22(4) then provides that this entitlement under s. 7 applies to proceedings brought by or at the instigation of a public authority -

“Whenever the act in question took place; but otherwise that sub-section does not apply to an act taking place before the coming into force of that section”. (emphasis added)

From this it can be seen that in drafting the UK Human Rights Act, 1998, one specific area of retrospectivity to past events was created, namely, that

created under s. 22(4) so as to afford in one isolated instance an entitlement to invoke a past event which was a breach of Convention rights as a defence to proceedings brought by a public authority. Therefore, and at least insofar as the Human Rights Act, 1998 is concerned, there is the clearest indication that, this instance apart, the statute which renders Convention rights enforceable in domestic law in the UK does not apply to past events. In Wilson v. First County Trust Limited (No. 2) [2003] 3 W.L.R. 568 (at p.615), Lord Scott of Foscote had the following to say in relation to s.22(4) and its significance in deciding whether the 1998 Act operated retrospectively or not:-

“This express indication of a specific retrospective effect that the Act was to have in relation to proceedings brought by a public authority is, in my opinion, a fair indication that in no other respect was the Act intended to have a retrospective effect. The arguments against allowing the Act to have a general retrospective effect seem to me very powerful. The legal consequences under the civil law of a transaction or of events ought to be established by reference to the law at the time they take place. When events apt to create rights or obligations take place citizens affected by the events need to be able to ascertain the extent of their rights or obligations. They cannot do so if subsequent legislation may add to or diminish those rights or obligations. Where transactions calculated to continue for some considerable period are entered into, intervening legislation may in some respect or other affect the rights and obligations that accrue under the transaction after the legislation has come into force. Landlord and tenant legislation is a good example. If a lease is granted for, say 99 years, there might well be intervening legislation capable of affecting the ability of the landlord to forfeit the lease, to operate a rent review clause, to claim damages for dilapidations or to recover possession on the expiry of the term. But it would be unusual for the legislation to alter the rights and obligations of the parties resulting from events that had already taken place, such as a forfeiture, a damages claim already instituted, rent review machinery already in train and so on.”

I have already in the course of summarising the respondent’s submissions alluded to an extract from the speech of Lord Nicholls of Birkenhead in the same case, where he noted that the outcome of one case involving pre-Act happenings could differ from the outcome in another comparable case depending solely on when the cases were heard by a court. “Parliament”, he

said (at p.576), “cannot not have intended s. 3(1) (i.e.of the English Act) should operate in this unfair and arbitrary fashion.”

Lord Nicholls quoted with approval the statement of Staughton L.J. in Secretary of State for Social Security v. Tunnicliffe [1991] 2 All ER 712 , 724:-

“The true principle is that Parliament is not presumed to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree -the greater the unfairness the more it is to be expected that Parliament will make clear if that is intended."

He then proceeded to hold that the proper approach was to identify the intention of Parliament in respect of the relevant statutory provision in accordance with the statement of Staughton LJ. Applying that approach to the Human Rights Act, 1998, and having agreed with the views of Mummery L.J. in Wainwright v. Home Office [2002] Q.B. 1334, 1352, para. 61, he stated that:-

“in general the principle of interpretation set out in s. 3(1) does not apply to causes of action accruing before the section came into force. The principle does not apply because to apply it in such cases, and thereby change the interpretation and effect of existing legislation, might well produce an unfair result for one party or the other. The Human Rights Act was not intended to have this effect.

I emphasise that this conclusion does not mean that s. 3 never applies to pre-Act events. Whether s. 3 applies to pre-Act events depends upon the application of the principle identified by Staughton L.J. in the context of the particular issue before the court. To give one important instance: different considerations apply to post- Act criminal trials in respect of pre-Act happenings. The prosecutions does not have an accrued or vested right in any relevant sense.”

Another criminal case, R. v. Lambert [2001] 3 W.L.R. 206 was relied upon by the respondent to argue that, apart from the limited exception in s. 22(4), the relevant provisions of the Human Rights Act, 1998 were not intended to apply to things happening before the date when they came into force, and decisions of courts or tribunals made before that date were not to be impugned on the ground that the court or tribunal had acted in a way incompatible with Convention rights.

In that case Lord Hutton said in the course of his speech (at p. 263/4):-

“Although the 1998 Act was passed on 9 November, 1998, its sections, with the exception of sections 18, 20, 21 (5) and 22, did not come into force until 2 October, 2000, the day appointed by the Secretary of State pursuant to s. 22(3). I consider that this delayed commencement of the great majority of the sections in the Act suggests it was the intent of Parliament that the Act (save in the limited circumstances set out in s. 22(4)) should not operate retrospectively, but that the sections were only to operate in respect of acts taking place subsequent to 2 October, 2000 after public authorities in the United Kingdom had had the opportunity to ensure that their actions and procedures would not violate Convention rights. I think that Parliament did not intend to bring about the situation which was a cause of concern to Rose L.J., the Vice- President of the Criminal Division, in R. v. Kansal [2001] All ER (D) 311 and which he described in para. 24 of the judgment of the Court of Appeal:-

“Leaving aside colourful historic examples, such as Sir Thomas More, Guy Fawkes and Charles I, all of whom would have benefited from Convention rights, until the Criminal Evidence Act, 1898, no defendant was permitted to give evidence on his own behalf. That it is a clear breach of Article 6. Many examples in the 20th century of other rules and procedures which, viewed with the wisdom of hindsight, were in breach of the Convention could be given. But we resist that temptation lest, by succumbing, we exacerbate the problem to which we are drawing attention. For over twenty years, this court has adopted a pragmatic approach, confirmed by successive Lord Chief Justices, whereby a refusal to extend time to apply for leave to appeal has filtered out those seeking to take advantage of the change in the law since they were convicted. This, in our judgment, reflects the public interest that there be finality in litigation, and it is an approach which has also helped this court to concentrate its limited resources on determining more meritorious appeals arising from more recent convictions.”

This difficulty of identifying where the line would ever be drawn in relation to past events in the event of a retrospective interpretation was also addressed by Lord Hoffman in In Re McKerr [2004] 1 W.L.R. 807, when he stated at p. 827:-

“Your Lordships’ House has decided on a number of occasions that the

Act was not retrospective. So the primary right to life conferred by Article 2 (i.e. of the Convention) can have had no application to a person who died before the Act (the Human Rights Act, 1998) came into force. His killing may have been a crime, a tort, a breach of international law, but it could not have been a breach of s.6 of the Act. Why then should the ancillary right to an investigation of the death apply to a person who died before the Act came into force? In my opinion it does not. Otherwise there can in principle be no limit to the time one could have to go back into history and carry out investigations. …It would in principle be necessary to investigate deaths by state action of the Princes in the Tower”.

While these cases are, of course, of considerable persuasive authority, there is some Irish authority suggesting the same outcome to the issue before this court.

In Lelimo v.The Minister for Justice, Equality and Law Reform [2004] 2 I.R. 178, Laffoy J. carried out a careful analysis of the decision of the Houses of Lords in Re McKerr, approving and adopting the views expressed in that case and stating ( at pp 189-90):-

“Counsel for the applicant having, properly in my view, conceded the non-retrospectivity of the European Convention of Human Rights Act, 2003, the issue which remains is whether the enforcement of the deportation order, which, if it takes place, will take place after the coming into operation of the Act of 2003, could constitute a breach of s. 3(1), if the deportation order was lawfully made. In my view, it could not. Such authority as any organ of State has to enforce the deportation order derives solely from the deportation order. The enforcement process cannot be severed from, and has no basis in law distinct from, the order itself. The decision to make the deportation order and the order itself both predate the coming into operation of s. 3(1). They are immune from challenge under the Act of 2003. Therefore, in terms of the application of the Act of 2003, it must be assumed that the deportation order is valid. If it is, its enforcement could not constitute a breach of s. 3(1).”

Other decisions have been handed down by the High Court in recent months (by Smyth J and Laffoy J) which touch on the issue of retrospectivity, but as these decisions are currently under appeal to this court they are not referred to in this judgment.

Ultimately, however, the pronouncement of this court in Hamilton v. Hamilton [1982] I.R. 466 which upheld the presumption against retroaction in the interpretation of statutes, is perhaps the clearest pointer suggesting that the issue in the Case Stated be answered in the negative. The decision in Hamilton can also be seen as the strongest authority in Irish law upholding the presumption that retrospective legislation which affects vested rights is prima facie unjust, a view repeated and confirmed by this court in the Matter of Article 26 of the Constitution & In the Matter of the Health (Amendment) (No.2) Bill, 2004 (unreported decision, 16 February, 2005) (at p.39).

In Hamilton the defendant had agreed to sell to a third party certain property prior to the 12th July, 1976, being the date of the enactment of the Family Home Protection Act, 1976. When the first defendant failed to complete the sale the second defendant commenced an action, prior to the said date, in the High Court against the first defendant and claimed specific performance of the Contract of Sale. A judgment in favour of the second named defendant was delivered in April 1977. Upon the enactment of the said Act, the plaintiff became aware of the power of the spouse to refuse consent to the conveyance of the family home and it became apparent that the property comprised in the Contract of Sale included the family home within the meaning of the Act. The plaintiff therefore refused to consent to the first defendant conveying the property to the second defendant and the sale still being uncompleted, she commenced proceedings in the High Court in July, 1979 claiming a declaration that any conveyance of the property by the first defendant without consent in writing be void. The Supreme Court held that the validity of the Contract of Sale had not been affected by the subsequent enactment of the Act of 1976 and that there was a presumption at common law that the Act of 1976 was not intended by the legislature to have retrospective effect. It was further held that, to declare void, by reason of the Act of 1976 a conveyance executed and performance of vendors major obligation under the contract for sale would be frustrate that contract by applying the provisions of that statute with retrospective effect.

Henchy, Griffin and Hederman JJ agreed with the conclusions of O’Higgins C.J. when he stated (at 474):-

“Retrospective legislation, since it necessarily affects vested rights, has always been regarded as being prima facie unjust.”

In the course of his judgment in Hamilton, Henchy J. stated as follows (at p.484):-

“The judicial authorities ( which are mentioned in the judgment which the Chief Justice has just delivered) make clear that, because there is a presumption that a statute does not intend to operate unfairly, unjustly or oppressively by trenching on rights or obligations lawfully acquired or created before the statute came into force, it should be construed as prospective in its application and not retrospective, unless there is a clear and unambiguous intention to the contrary expressed, or necessarily implied, in the statute, or unless the change effected by the statute is purely procedural.”

The judgment also had important things to say about retroaction and pending litigation to which I will refer in some detail below.

I am satisfied, however, for all the reasons outlined above, that the 2003 Act cannot be seen as having retrospective effect or as affecting past events.

The Appeal in the Circuit Court

Arguments have also been advanced that the relevant decision and ultimate substance of this matter is the decision of the Circuit Court which, on the obvious basis that it has not yet been given, is therefore prospective and involves no retrospective application of the 2003 Act.

For this submission to be correct, however, it would be necessary to see the Circuit Court proceedings as a new and stand-alone process, divorced from the District Court proceedings where an adjudication on legal rights has in fact already taken place. It would require an approach which effectively would require that those past events had not taken place. However, as Aristotle had Agathon declare: “This alone is denied to God: the power to undo the past.”

In more prosaic terms, Maxwell once more has something to say about the vested rights of parties in litigation (12th Ed at p.220-1):-

“In general, when the substantive law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights”

Further, Maxwell also states (at 221):- “The effect of a change in the law between a decision at first instance and the hearing of an appeal from that decision was

discussed by the House of Lords in A.G. v Vernazza (1960) A.C. 965. Lord Denning said (at p.978) that it was “clear that in the ordinary way the Court of Appeal cannot take into account a statute which has been passed in the interval since the case was decided at first instance, because the rights of litigants are generally to be determined according to the law in force at the date of the earlier proceedings.”

In Hamilton v Hamilton [1982] I.R.466, Henchy J approved the foregoing view, stating (at 480):-

“From a wide range of judicial decisions I find the relevant canon of interpretation at common law to be this. When an Act changes the substantive, as distinct from procedural law then, regardless of whether the Act is otherwise prospective or retrospective in its operation, it is not to be deemed to affect proceedings brought under the pre-Act law and pending at the date of the coming into operation of the Act, unless the Act expressly or by necessary intendment provides to the contrary.”

Henchy J went on to say as follows (at p. 481):- “Maxwell on the The Interpretation of Statutes, (12th ed., pp. 220-1), puts the applicable rule of interpretation thus:- “In general, when the substantive law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights.” I would cavil at that statement of the law to the extent that the rule of interpretation it sets out is stated to be only a general one, thereby suggesting that it admits of exceptions. In my opinion, the judicial authorities show that it is a universal rule which applies to all pending actions, unless the language used in the enactment is susceptible of no other conclusion than that the rights of parties to pending actions are intended to be affected: see, for example, the judgment of the Privy Council in Zainal bin Hashim v Government of Malaysia (1980) A.C. 734. In this jurisdiction, the general common-law rule as to the impact (or lack of impact) of a statute on pending proceedings was purported to be specifically adapted by s.21 (1) of the Interpretation Act, 1937, to deal with the effect of a new statute on pending proceedings which were brought under a statute which is repealed by the new statute.”

One can only conclude that this view applies a fortiori where, as in the instant case, the proceedings were not merely pending but had proceeded to final determination in one court and a Notice of Appeal had been lodged to another court prior to the coming into operation of the new statute. The

parties’ legal rights and obligations were, in my view, fixed and determined once the wheel was set in motion by the service of a Notice to Quit, an act which triggered the provisions, requirements and consequences of s.62 of the Housing Act, 1966. That is the moment when the invocation of legal rights determined the applicable law and the position of the parties. The requirement to protect the respective positions of the parties thereafter is all the greater in a situation where vested rights are involved and where the changes proposed by the 2003 Act are agreed to be substantive rather than procedural.

I believe the respondent’s submissions on this point to be entirely correct. The Circuit Court proceedings, although consisting of a de novo hearing where points not raised in the court below can still be now argued, do not exist in a vacuum. They exist only because there has already been a determination of legal rights and obligations by reference to defined legal criteria in the court below – in this case the District Court. The Circuit Court is performing an appellate function only which is specifically referenced to the statutory requirements set out in s.62 of the Housing Act, 1966. No more than the District Court, it has no other function than to determine whether the statutory requirements of proof were complied with and, if so, to confirm the warrant of the District Court. It would be a bizarre outcome if the first hearing was conducted by one set of legal rules and the appeal hearing by another.

The concept of fairness, properly understood, would be severely compromised if the statute was retroactive. A housing authority, which had bona fide exercised its statutory powers to manage its housing stock by reference to certain and defined criteria could find its management policy for the letting of dwellings turned upside down and rendered inoperative. One tenant in an identical position with another could find he enjoyed a different and privileged position by the roll of a dice, depending on when his appeal was heard. Thus two tenants whose cases had been heard and determined by the District Court before the 2003 Act became operative could have quite different outcomes if one succeeded in deferring his appeal until January, 2004. This is what ‘unfairness’ must be taken as meaning in this context.

In conclusion, given that the 2003 Act enjoys a presumption of constitutionality, and as it makes no attempt to extend its application to past events or to pending litigation, I would answer the three questions first raised by the Circuit Court judge in the negative.

Quite clearly, important matters remain to be resolved in relation to the fourth question, but any attempt to address those issues should await another case in view of the conclusion arrived at on the issue of retrospectivity.