A 'Dialogue-Oriented Departure' in Constitutional Remedies?: The Implications of NVH v. Minister for Justice for Inter-Branch Roles and Relationships

Abstract

The Supreme Court’s decision in N.V.H v. Minister for Justice & Equality to defer a prospective declaration of invalidity was almost immediately identified by a leading commentator as a significant development: a “promising ‘dialogue-oriented’ departure in Irish constitutional law” under which “the judges did not shirk their responsibility to act as guardians of constitutional rights, but neither did they arrogate political power to themselves”. In staying its strike-down power, the approach applied in NVH resembles a suspended declaration of invalidity. This is a remedy that has been adopted and applied in other constitutional systems and which has previously attracted favourable judicial and academic comment in Ireland (and elsewhere). This suggests that the natural response to the remedial creativity of NVH should be one of welcome. It is argued here that a positive assessment of the long-term implications of NVH may, at this point, be premature. In large part, this is because it is currently unclear precisely how the remedial phase of the NVH litigation will play out. In addition, however, it is argued that there is scope for concern about aspects of the procedural possibilities that, in principle, remain open in NVH. The Supreme Court’s approach could herald a useful addition to the Irish courts’ remedial toolkit. It is, though, also possible that the remedy might develop in a manner that undermines the distinction between – and distinctiveness of – inter-branch roles and responsibilities within the constitutional order. This could, in the long-term, have adverse consequences for the separation of powers, for the enforcement of constitutional rights and standards, and for the rule of law.