CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 1 septembre 2022

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margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s35008A5F { width:18.55pt; display:inline-block } .s3AF73327 { width:142.11pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block }   FIFTH SECTION CASE OF P.C. v. IRELAND (Application no. 26922/19)     JUDGMENT   Art 1 P1 • Ratione materiae • Withheld old-age pension payment, due to statutory disqualification while incarcerated, not a “possession” Art 14 (+ Art 1 P1) • Discrimination • Peaceful enjoyment of possessions • No discrimination against convicted prisoner statutorily disqualified from old-age pension payments while incarcerated • Payments a proprietary interest falling within ambit of Art 1 P1 • No evidence of greater impact on older-age prisoners as a group • Differing impact of the disqualification, based on a person’s level of income and its source, not related to personal status • Convicted prisoners not in relevantly similar position to persons detained for treatment of mental illness or remand prisoners Art 13 (+ Art 14 + Art 1 P1) • Effective remedy • Supreme Court decision to uphold constitutional complaint, and not proceed with full consideration of Convention complaints, within authorities’ margin of appreciation • No   issues arising from level of damages awarded • Manifestly ill-founded   STRASBOURG 1 September 2022   FINAL   01/12/2022   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of P.C. v. Ireland, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mārtiņš Mits, President,   Síofra O’Leary,   Lətif Hüseynov,   Lado Chanturia,   Ivana Jelić,   Mattias Guyomar,   Kateřina Šimáčková, judges, and Victor Soloveytchik, Section Registrar, Having regard to: the application (no. 26922/19) against Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by Mr P.C. (“the applicant”) on 8 May 2019; the decision to give notice to the Irish Government (“the Government”) of the complaints concerning Article 1 of Protocol No. 1, alone and in conjunction with Article 14, and also Article 13 of the Convention, and to declare inadmissible the remainder of the application; the decision to grant the applicant anonymity; the parties’ observations; Having deliberated in private on 28 June 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the disqualification of the applicant for his old age pension while serving a sentence of imprisonment. The applicant claimed that this disqualification, provided for by statute, was an interference with his rights under Article 1 of Protocol No. 1, and that it also discriminated against him contrary to Article 14 in conjunction with Article 1 of Protocol No. 1. The applicant also claimed that because the Supreme Court did not determine his Convention complaints and, as a result, did not award him adequate redress, he was denied an effective remedy, contrary to Article 13. THE FACTS THE CIRCUMSTANCES OF THE CASE 2.     The applicant, P.C., is an Irish national, who was born in 1940 and lives in Dublin. He is represented before the Court by Mr J. MacGuill, a lawyer practising in Dublin. 3.     The Government were represented by their Agent, Mr B. Lysaght of the Department of Foreign Affairs. 4.     The facts of the case may be summarised as follows. The applicant made Pay Related Social Insurance (‘PRSI’) contributions, qualifying for the State Pension (Contributory) (‘the SPC’) in accordance with sections 108 ‑ 109 of the Social Welfare Consolidation Act 2005 (‘the 2005 Act’, see further under Part II.C below) when he reached the age of 66 years on 10 February 2006. He began to receive weekly SPC payments from that date to the value of about EUR 230. 5.     On 25 March 2011 the applicant was convicted of sixty counts of sexual assault and fourteen counts of rape. The following day, he was sentenced to fifteen years’ imprisonment, with the final three years suspended. The applicant indicated to the Court that his anticipated release date was in March 2020. He served his sentence in what the High Court described as “a well ‑ run, modern prison with good facilities and a high standard of care”. 6.     Section 249(1)(b) of the 2005 Act disqualified persons who were undergoing imprisonment or detention in legal custody from receiving any of the benefits provided for in part 2 of the Act. This included the SPC. On this basis, payment of the applicant’s pension ceased as from the date of his imprisonment. Proceedings in the High Court 7.     In 2013 the applicant issued proceedings against the State. He sought a declaration that the impugned provision was incompatible with one or more articles of the Constitution, damages for a breach of his constitutional rights, and an injunction ordering the State to pay him his pension. In addition, he argued that the stoppage of his pension was contrary to one or more of the following provisions of the Convention: Articles 3, 5, 6, 8, 13, and 14, as well as Article 1 of Protocol No. 1. He sought a declaration under section 5 of the European Convention on Human Rights Act, 2003 that the impugned provision was incompatible with the Convention and claimed compensation for the loss suffered by him as a result (see further under Part II.B below). 8.     The applicant claimed before the High Court that the stoppage of his pension had left him practically destitute, since his only income was a prison gratuity. This had initially been worth EUR 18.90 per week, decreasing to EUR 11.90 per week owing to his inability to perform work within the prison on account of a number of age-related ailments and a wrist injury sustained in prison. The High Court noted that had he been in a position to take on prison work, he could have earned an extra EUR 3.50 per week. As things stood, the applicant explained that he had no money to spend on, for example, extra food, personal clothing or small electronic appliances for use in his cell. He mentioned a payment of EUR 50 from the prison hardship fund in 2013. He complained that the stoppage of his pension would mean a loss of over EUR 100,000 for him. 9.     In addition to the applicant, the High Court also heard evidence from two State officials, a civil servant who explained the structure and purpose of the SPC, and the Assistant Governor of the prison where the applicant was being held. The first witness indicated that about 30-40 prisoners had their SPC payments stopped each year. She also clarified that the SPC is a non ‑ means-tested benefit. All those who meet the eligibility criteria receive it, regardless of any other income or assets. The second witness informed the court about the regime to which the applicant was subject in prison, the facilities and services available to him, and the average cost of maintaining a prisoner per year – approximately EUR 65,000. She indicated that there were between five and ten prisoners in the same age group as the applicant who were performing work in the prison, earning EUR 4.50 per week. It was possible for prisoners to receive additional funds, including from private pensions, that could be lodged by their family into the prisoner’s “prison account”. 10.     The High Court gave judgment on 29 April 2016 ([2016] IEHC 315), dismissing the case. It addressed the question whether payment of the SPC to the applicant represented a property right for the purposes of the Constitution or the Convention. It did not accept the applicant’s argument that the contributory nature of the benefit meant that it was a property right. It noted that the benefit system was also funded in part by tax revenue, and the legislature could very well decide to change the funding model from contributions to funding through income tax. Furthermore, it referred to the importance of maintaining flexibility in the social welfare system so that it could meet the social needs prevailing at any moment in time. To classify contributory benefits as property rights would greatly hinder that. In this respect the judgment referred to Convention case-law allowing a wide margin of appreciation to the Contracting States in matters of economic and social strategy. 11.     As for the claim of unconstitutional discrimination, the High Court rejected the attempted comparison with prisoners in receipt of private pensions. Such benefits clearly were property rights that the State could not suspend, unless it were to introduce a requirement for prisoners to contribute to the cost of their incarceration. It further noted that such prisoners were actually treated in the same way as their (likely) entitlement to receive the SPC was also suspended for the duration of their detention. Furthermore, the rule applied to all social welfare benefits, not just the SPC. The court rejected the argument that the applicant was being required to meet the cost of his imprisonment whereas those with other sources of income were not. It considered that given the purpose of the SPC – to assist the recipients to meet basic living costs – the State was entitled to withhold the benefit when the person was imprisoned and their essential needs were met. This was an objectively rational and proportionate measure, and therefore not discriminatory. 12.     Turning to the Convention arguments, the High Court summarily rejected those advanced under Articles 3, 5, 6 and 8. As for his complaint under Article 14, it stated: “124.     In this case, the impugned provision applies to the population generally, and more specifically it applies to all persons who are entitled to receive the SPC. It applies to social welfare benefits generally, and not just the SPC. The plaintiff complains that it does not apply to those who have a private pension, other sources of income or a semi-state pension, but as I have already held, this is not comparing like with like. No argument has been advanced, and it does not appear as though any could be made, as to why the plaintiff should be treated differently from the rest of the population as regard the application of s. 249(1). Moreover, if there has been any difference in treatment of the plaintiff with others in analogous situations (and it follows from the above that I do not consider this to be so), this does not give rise to a breach of Article 14 in circumstances where there is a reasonable and objective justification for section 249(1). For these reasons, I do not consider that there has been any violation of the plaintiff’s rights under Article 14, taken in conjunction with any other article of the Convention.” 13.     Lastly, it dealt with the complaint under Article 1 of Protocol No. 1: “125.     The question as to whether or not the suspension of a State pension, due in a period of incarceration, violates rights under Article 1, Protocol No. 1 of the Convention was considered in [ Szrabjet and Clarke v. the United Kingdom, nos. 27004/95 and   27011/95, Commission decision of 23 October 1997, unreported]. In that case the Commission concluded that such a measure was in the public interest because prisoners should not be in a position to accumulate a lump sum by reason of being paid a State pension, at a time when they are being maintained by the State. It is submitted on behalf of the plaintiff in these proceedings that Szrabjet has been overtaken by subsequent authorities of the ECtHR such as Stec, Andrejeva and Stummer . However, these cases do no more than establish that once a State legislates for payment of a welfare benefit, citizens who meet the eligibility criteria for that benefit have a pecuniary interest in the benefit that is protected by Article 1, Protocol 1 of the Convention. The eligibility requirements themselves must be reasonable and not arbitrary. But significantly, those authorities stop short of holding that a citizen has a property right in such benefits, arising by reason of contributions made and in the context of the claim made in these proceedings by the plaintiff, the conclusions reached in Szrabjet remain undisturbed.” 14.     The judgment concludes with a summary that, as relevant to the complaints now before this Court, states: “127.     The plaintiff claims that he has a constitutionally protected property right to receive payment of the state pension contributory by reason of his having made the requisite number of PRSI contributions during his working years. He also claims that this same right is a property right protected by Article 1, Protocol 1 of the Convention. Analysis of authorities in this jurisdiction, the United States, the United Kingdom and the European Court of Human Rights demonstrates that in those jurisdictions, no such property right accrues. In my view it is no different in this jurisdiction. The right to receive payment of the SPC or indeed any other social welfare benefit is a statutory right only and is subject to such conditions as to eligibility as are laid down by the Oireachtas [Parliament] from time to time. 128.     In both the Irish constitutional context and in the context of established convention law, the Oireachtas has a wide margin of appreciation in establishing criteria for eligibility of any social welfare benefit, but must ensure that such criteria are rational, objective and in pursuit of a legitimate aim, and that they are in no way arbitrary or discriminatory. The SPC forms part of what the defendants have referred to in their submissions as a scheme of single maintenance meaning that the State should not pay more than once for the maintenance of an individual. The purpose of the SPC is to maintain or to assist in the maintenance of an individual in his/her years of retirement. The fact that the benefit is not needs based is not relevant or determinative of the issues raised in these proceedings. 129.     Section 249(1) does no more than suspend payment of the benefit in certain circumstances, including a period during which a person who is otherwise eligible to receive the benefit is maintained at the cost of the State while imprisoned. Since the purpose of the benefit in the first place is to assist in the maintenance of the individual, it is perfectly rational that the benefit should not be paid when that person is otherwise being maintained by the State. Moreover if the benefit were paid during a period of incarceration, a person would have the ability to accumulate a lump sum which he would not accumulate but for his incarceration. The section therefore has a rational and objective basis, and equivalent United Kingdom legislation has been acknowledged as such by the ECtHR. ... 132.     The plaintiff complains that s. 249(1) operates in a discriminatory manner, contrary to Article 40 of Bunreacht na hÉireann [Constitution of Ireland] and Article   14 of the Convention. This complaint is made on the basis that the same measure does not apply to others who are in receipt of private pensions or other kinds of public pensions. This contention must fail for a number of reasons. Firstly, the comparison with others in receipt of private pensions or other types of public pension is a comparison of two different factual situations. The ECtHR has held repeatedly that Article 14 applies when States treat differently persons in analogous situations. There is a fundamental difference between a private pension or a public service pension payable in accordance with the terms of a public service superannuation scheme (such as in Lovett) and the SPC and so the comparison advanced by the plaintiff is one of two different factual situations that does not give rise to discrimination for the purposes of Article 14 of the Convention. In the context of Article 40.1 of Bunreacht na hÉireann , it has been held that when comparing the different treatment of persons, it is important not simply that the persons can be said to be similar or even the same in some respect, but they must be the same for the purposes in respect of which the comparison is made ( M.R. & D.R. (suing by their father and next friend O.R.) and others v. An   T ‑ Ard ‑ Chláraitheoir ). In comparing himself to others in receipt of private pensions or other public service pensions, the plaintiff is not comparing like with like. Section 249(1) applies to all prisoners who otherwise meet the criteria for eligibility to the SPC, including those who may also be in receipt of private pensions or other public service pensions. More than that, it applies to all social welfare benefits. For these reasons the section does not result in discrimination of the plaintiff’s right to equal treatment under either the Constitution or the Convention. 133.     The State has an express duty to protect as best it may the property rights of every citizen and it is well established that any interference with those rights must be in accordance with the exigencies of the common good and must be warranted by and proportionate to the objectives sought to be secured. All of that depends upon the existence of a property right in the first place, and since I have held that the plaintiff does not have a property right in the SPC, the need to analyse the section to see that it meets these criteria is limited. However, it is necessary to the extent that statutory provisions which disqualify persons from receiving benefits to which they would otherwise be entitled must be rational, objective and in pursuit of a legitimate objective. The objectives of avoiding double maintenance and the accumulation of a lump sum that would not be accumulated, but for a person’s imprisonment (and the consequent maintenance of that person at the expense of the State) in my view meet those requirements.” Proceedings in the Supreme Court 15.     The applicant sought leave to bring an appeal to the Supreme Court directly, rather than to the Court of Appeal (known as a “leapfrog appeal). In granting leave, the Supreme Court considered, in its determination of 15   September 2016 , that the case raised an issue of general public importance, and that there were exceptional circumstances that justified bringing the case directly to the final court. It identified as the essential question in the case the issue whether the exclusion of prisoners from benefiting from a contributory old age pension was consistent with rights guaranteed in either or both the Constitution and the Convention. It granted leave in respect of all of the grounds raised by the applicant, including the eleventh ground which referred to Article 1 of Protocol No. 1 alone and in conjunction with Article 14 of the Convention. The first Supreme Court judgment 16 .     The Supreme Court delivered two judgments in the case. In the first judgment, dated 27 July 2017 ([2017] IESC 63), the Supreme Court first considered the nature of the legal entitlement to the SPC under the relevant provisions of Part 2 of the 2005 Act: “[45].     ...   What ss.108 and 109 of the Act undoubtedly do contain is a legal entitlement, on foot of which, subject to compliance with the statutory conditions, an eligible person might sue if denied the pension. Of course, eligibility hinges on compliance with conditions. But, the statutory provisions, at least, give rise to a justiciable, if conditional, legal entitlement. It is unnecessary to go so far as to hold, therefore, that this constitutes a form of property right recognised and protected by law. The Minister submits there has been a breach of the statutory conditions. But, what is undoubted is that the provision is mandatory, not subject to any provisions of law, and affects some prisoners in a more severe way than others in receipt of private pensions, or other pensions, emanating from the State, such as Army pensions.” 17.     The Supreme Court then examined whether the disqualification was a penalty imposed in a manner breaching the separation of powers under the Constitution by infringing upon the sentencing power of the courts. Having examined the range of exemptions from the disqualification, the Supreme Court stated: “[48].     The only conclusion ... is that the mandatory sanction is to be confined to the specific class of person who are deemed to be “fully criminally culpable”; it is a sanction imposed by statute and regulation on those found by a court of law to have committed serious crimes, warranting imprisonment... The effect of the statute, as applied, is to focus the impact of the mandatory disqualification directly on persons who are subject to terms of imprisonment, such as the appellant.” 18 .     The Supreme Court then examined the State’s arguments as to the purpose of the disqualification: “[54].     Counsel for the Minister submits there is a rationale for the provision, based on unjust enrichment. But is this the true rationale, bearing in mind the provision’s legislative history? I am not persuaded. Even on a consideration of the exceptions and exclusions which are, in a manner of speaking, “ring fenced”, one is inevitably left with the conclusion that the provision is intended to impact, only on “culpably” guilty persons. The categories of person who are excluded from disqualification, such as those found not guilty, those detained pending trial where there is no charge, those where there is a qualification on the finding of guilt, or where there is absence from the State, leaves only that category of persons who are found guilty in due course of law, and who do not come within the exceptions.” 19.     It stated that the question was whether the impugned provision constituted a punishment and therefore an impermissible administration of justice by legislation. The judgment continues: “[57].     Having regard to its legislative history, and its impact, the impugned provision was, undoubtedly, originally intended to be punitive in purpose. It cannot be convincingly now said its effect has, as it were, “morphed” into something different, namely, a “social solidarity” provision. The sums of money involved are significant, and could amount in total to six figures by the conclusion of the sentence. While it may be said the provision’s purpose is to avoid unjust enrichment, its true effect can only be described as punitive, retributive, indiscriminate, and disproportionate. No such financial penalty is mandatorily imposed on prisoners with independent means... But more significantly, the section is still a punishment which is not imposed by a court. [...] [59].     To my mind, the prohibition on the payment of the SPC to sentenced persons can only constitute an additional punishment. Article 34 of the Constitution provides that justice shall be administered in courts established by law, by judges appointed under the Constitution. Article 38 provides that no person shall be tried on any criminal charge, save in due course of law. But this punishment is not imposed by a court at all. As such, it contravenes Articles 34 and 38 of the Constitution. The imposition of penalties, in the context of sentencing a person convicted of crimes, is a function exclusively reserved by Article 34 of the Constitution to the courts. Sentencing is an integral part of trial in due course of law, guaranteed by Article 38 of the Constitution. The provision, as applied, offends against those principles. 60.     What is in question here is a statutorily based sanction, which is imposed entirely outside the domain of court proceedings, in an indiscriminate way, which is essentially punitive in effect. It is, in that sense, arbitrary, as well as constituting an invasion into the judicial remain. In light of the nature and extent of these incursions, no argument based on proportionality, or social solidarity, can meet the appellant’s case, as the measure constitutes an incursion into the domain prescribed as judicial under the Constitution. 61.     The fact that the provision is broad in its terms does not entitle the State to, by regulation, adopt a means of application which constitutes an incursion into the judicial domain. Disproportionate or discriminatory means negate any lawful end. The Minister must be found to have acted ultra vires , if the necessarily implied constitutional limitation of jurisdiction invades the judicial domain. The effect of the section in question, when combined with the regime established by the regulations made under it, offends against the separation of powers principle. 62.     The effect of s. 249 (1) is to result in an impermissible legislative incursion into the judicial function by making provision for the imposition of an extra penalty upon an individual in receipt of SPC , without permitting the fact of this to be taken into account by a sentencing court in exercising its discretion as to the appropriate penalty to be imposed upon a person convicted of an offence that attracts a sentence of imprisonment. The manner in which the extra penalty operates fails to safeguard the appellant’s right to have justice administered in courts established by law, by judges appointed in the manner provided by the Constitution. In my view, the section as applied contravenes the principles of separation of powers, and administration of justice, fundamental to the Constitution ...” 20.     Given this finding, the Supreme Court found it unnecessary to proceed to any full consideration of the rights under the Convention. It did not consider that the Convention case-law that had been cited before it could bring the case any further. 21.     Although it upheld the challenge to the impugned provision, the Supreme Court decided to adjourn for a short period the issue of the remedy to be granted and invited the parties to make submissions on this. 22.     On 15 January 2018 the State made an interim payment of EUR 7,500 to the applicant. The second Supreme Court judgment 23.     The Supreme Court gave its remedies judgment on 28 November 2018 ([2018] IESC 57). The court was not unanimous. The majority judgment was given by O’Donnell J (Clarke C.J., McKechnie J. and O’Malley J. concurring). He commented on the first judgment as follows (emphasis in the original): “7.     The appellant challenged the provisions on a number of grounds, but significantly for present purposes, the court did not hold for the appellant on the wider grounds asserted, but rather determined that the effect of the narrowing of the disqualification by the 2007 Regulations was to render the disqualification a further punishment for a criminal offence. This, the court concluded, was an interference with the administration of justice, since the process of trial, adjudication and sentence are integral aspects of the administration of justice in criminal matters, consigned by the Constitution to the courts, and which cannot be conferred upon any other body. It followed from this reasoning that if the disqualification had not been limited to persons convicted, but if, for example, it included other persons lawfully detained by the State, and whose accommodation and upkeep was therefore paid for by the State, or if the disqualification was imposed by the court at the sentencing stage rather than by statute, then such provisions might pass constitutional muster. On this reasoning, there was nothing per se offensive to the Constitution in the State excluding payment of (at least some) benefit to a person whose detention was provided for by statute, and equally nothing offensive in the idea that in the case of persons convicted and sentenced to imprisonment, such an order could in an appropriate case be made by a sentencing court. Furthermore, since the unconstitutionality identified was located in the interaction of the regulations and the statute, questions necessarily arose as to how any determination of the inconsistency of the resulting situation with the Constitution could or should be remedied. For these reasons and others, it was understandable that the court adopted the course of adjourning consideration of the appropriate order to be made.” 24.     O’Donnell J then discussed the rationale for and acceptability of a court adjourning a final order in an appropriate case so as to allow the legislature time to consider how to respond to the finding that a provision of law was contrary to the Constitution. He moved on to the question of damages pursuant to the declaration of invalidity of section 249(1)(b) of the 2005 Act. He noted that in Irish constitutional law a declaration of invalidity did not normally lead, without more, to an award of damages. He considered the applicant’s argument that damages should be awarded automatically to be erroneous. 25.     The next issue considered was whether, as a consequence of the declaring the statutory provision invalid, the applicant should then recoup in full the unpaid benefits. While it was clear as a matter of law that a declaration of invalidity established the nullity of the provision in question from the moment of its enactment (or from the date of entry into force of the Constitution for older legislation), that did not mean that all actions taken on foot of that provision must likewise be considered to be without any legal effect. As shown by a series of relevant rulings by the Supreme Court, it was established beyond question that there was no automatic rule of consequential invalidity, at least in the field of criminal law. As the applicant’s claim was a civil one, this raised slightly different issues. This led O’Donnell J to review a second series of decided cases, the foremost of these being the 1982 judgment of the Supreme Court in the case of Murphy v. The Attorney General holding that the Irish tax system was contrary to the Constitution in view of the manner in which it provided for the tax assessment of married couples compared to two single persons. While the Supreme Court had clarified that the offending provisions of tax legislation had been void ab   initio , it had also significantly limited the consequences of this by holding that only the two plaintiffs could recover the excess tax paid, and only in relation to the two years that had passed since they had begun their legal challenge. 26.     He reached the following conclusion on the applicant’s case: “47.     Turning to this case in conclusion, it appears to bear some comparison with the facts of Murphy v. Attorney General [1982] I.R. 241: indeed, the payment of social welfare payments pursuant to the 2005 Act is the other side of the State’s accounting process from the collection of taxes considered in Murphy . In one respect at least this case may present a stronger case for a limitation of the effect of a declaration of invalidity. The outcome of Murphy was that it was never permissible to insist upon a single assessment of married couples. Here, however, the decision of this court is not so clear cut. It seems conceivable that it would be entirely permissible to make at least some adjustment to the entitlement to social welfare of persons detained by the State and whose expenses are reduced by that fact, although not necessarily extending to the blanket removal effected by s. 249(1)(b). There was no time in which a person in the position of the appellant could contend that they were entitled to receive payments while imprisoned, nor was there any legislative judgment that the appellant was so entitled. Indeed, to treat the appellant and anyone in the same position as fully entitled to payments under the 2005 Act, would be to create a new form of legislative entitlement to benefit, and moreover one which not only was not approved by the Oireachtas but, moreover, plainly runs counter to the legislative intention. Just as the court will not sever a provision if the result will be to create legislation inconsistent with the legislative intention as apparent from the Act, the court should be slow to permit a declaration of invalidity to create by default a form of legislation of general application, which it is plain the Oireachtas would not have enacted, and which, moreover, would extend the financial burden on the State and its citizens without sanction of the Dáil [the lower house of the Irish Parliament]. Furthermore, the theory of any claim in litigation is that a person is forced to bring proceedings because the defendant wrongfully withholds something which the plaintiff claims. The failure of the defendant to provide the benefit or pay the damages justifies the commencement of proceedings and the awarding of costs against the defendant. But here, the Minister for Social Welfare could never lawfully have paid the benefit to the appellant. The Minister was bound by the law to apply s. 249(1)(b) and had no entitlement to treat it as invalid or a nullity: that was solely within the jurisdiction of the Superior Courts pursuant to Article 34 of the Constitution. All of these factors point, in my view, to an obligation to fashion an appropriate remedy in this case, rather than adopt the general approach of consequential invalidity. 48.     The invalidation of s. 249(1)(b) will require that the Oireachtas now address the question in a comprehensive, and, I hope, humane way, and produce an outcome consistent with the Constitution. That may yet yield benefits for prisoners and others detained by the State. In terms, however, of the recovery of benefits unpaid for the period while the 2005 Act, and more specifically s. 249(1) was in force, I would follow the broad approach in Murphy v. Attorney General [1982] I.R. 241, and would be prepared to hold that this appellant would be entitled to be paid benefits, but limited to a period approximating to the time taken in these proceedings. That must be subject of some rough estimation, since it cannot be that dilatory proceedings would increase the amount recovered. In fact he has already been paid a sum of €7,500 on account of damages by the State authorities. There has been no precise quantification of the amount of the claim made by the appellant under this heading by reference to the progress of the case. Taking a broad and admittedly unscientific approach, I would accordingly order that the appellant is entitled to receive €10,000, in this regard, €7,500 of which has already been paid. The fact that a claim was not intimated earlier means, as in Murphy , that the State was entitled to maintain its accounts on the assumption that the disqualification contained in s. 249 was valid and effective. No person who had not issued proceedings would be entitled to claim any entitlement. Where proceedings have been issued and not advanced, it will be necessary to consider carefully if any entitlement to any benefit is appropriate. However, that issue is not one which arises in this case.” 27.     Clarke CJ gave a brief concurring judgment. Commenting on the applicant’s claim to receive full retrospective payment of his pension, he said: “1.5 ...     [I]t is sufficient for present purposes to acknowledge that there are a wide range of potential measures which might have been or might now be introduced which would fall short of conferring on Mr. C the entitlement to obtain a full pension. To hold that he is retrospectively entitled to a full pension as a consequence of the declaration of inconsistency with the Constitution being made today would, therefore, be to confer a windfall gain on him.” 28.     McKechnie J also issued a concurring judgment in which he addressed the applicant’s claim for redress. He stated: “16. ...     I can finally say that the declaration of invalidity alone is not an effective remedy in this case. Indeed, there is an argument for suggesting that at least from the date of the institution of the proceedings the plaintiff should be entitled to recover by way of damages the amount which, but for the invalidated section, he would have received. The only prohibition preventing that from happening was s. 249(1)(b) of the 2005 Act. However, to do so in a manner as simplistic as that would risk infringing on the legislative role. It would in effect be tantamount to saying that in respect of a convicted person who is incarcerated the State may not have a view on the S.P.C. as applying to him. To go further along that route would be to second guess the legislature and in any event is not a matter for this Court. Therefore, although attractive, the simplicity of that approach is not appropriate.” 29.     MacMenamin J, who had given the principal judgment in the case, took a different position on the question whether the effects of a declaration of invalidity are ex tunc or ex nunc . He introduced his reasoning by recalling key elements of the first judgment: “5.     A number of features in the principal judgment require reiteration. First, the declaration to be made will not affect the validity of the custodial part of the appellant’s sentence. That is not in question. Next, the principal judgment holds that ss. 108 and 109 of the Act of 2005 contain a simple legal entitlement, on foot of which, subject to compliance with certain statutory conditions, an eligible person may be entitled to the State Pension Contributory. Eligibility is contingent, therefore, upon the fulfilment of these statutory conditions. As the Court pointed out, the appellant does not hold any constitutionally cognisable property right in the pension. The appellant’s interest in the pension is, therefore, limited in this way. The issues of redress ... can only be considered in that context. Additionally, I would emphasise that the Court did not find that s. 249 offended against the guarantee of equality before the law contained in Article 40.1 of the Constitution. The question of over-inclusivity, or under-inclusivity, did not arise in the case of this appellant – a sentenced prisoner. ....” 30.     For the reasons he set out at length, his conclusion was that the primary redress to be granted in the case was an ex tunc declaration of the invalidity of s. 249(1)(b) of the 2005 Act. Moving on to the issue of damages, he recalled the grounds of the principal judgment: “69.     The principal judgment contained observations to the effect that the s. 249(1) disqualification was arbitrary, indiscriminate, and disproportionate, insofar as concerned the appellant. But the ratio of the principal judgment is that the disqualification operated by s. 249(1)(b) is a penalty on prisoners, in that it constitutes an impermissible incursion into the judicial domain. The judgment did not hold there was any other constitutional invalidity... The judgment does not speak to any constitutional right of the appellant to equality of treatment before the law under Article   40.1 of the Constitution, or a narrowing of the disqualification by the Regulations. 70.     To reach such a determination would have necessitated going considerably beyond the scope of the principal judgment, and would have required a court to consider the proportionality of s. 249(1) in its true legal sense, having regard to the legitimacy of the end which the provision seeks to achieve. Whether that objective is legitimate and proportionate are arguable propositions. The provision might be justified on the grounds of the legislation being part of a social solidarity code, or indeed on the alternative grounds that the appellant’s basic needs, which he would normally discharge from his SPC, are, in fact, undertaken by the State during the period of his imprisonment. But the case did not extend that far.” 31.     He concluded with a summary of his reasoning, which reads as relevant: “97.     ... 4.     In my view, the appellant has not shown that any personal constitutional right of his was breached. What has been shown is, rather, that s. 249(1)(b) of the Act of 2001 is constitutionally invalid, because it imposed an extra-judicial punishment on prisoners. 5.     The constitutional invalidity was caused by the absence of judicial process relating to the disqualification at the time of his sentencing. What the outcome of such a hearing might be, in the words of Budd J., is "imponderable", and "unascertainable". Any "loss" resulting, even if it were quantifiable, is necessarily indirect. In general, it seems to me that the simple application of the law, as it stood for many years, could not in itself give rise to a claim in damages, or a finding of wrongdoing. These would be necessary to establish any claim.” RELEVANT LEGAL FRAMEWORK AND PRACTICE Bunreacht na hÉireann (“the Constitution”) 32.     Article 34.1 of the Constitution states: “Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.” 33.     Article 38.1 of the Constitution states: “No person shall be tried on any criminal charge save in due course of law.” 34.     Article 40.1 of the Constitution states: “All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.” The European Convention on Human Rights Act 2003 (‘the 2003 Act’) 35 .     Section 3 of the 2003 Act states: “(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 (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate.” 36 .     Section 5(1) of the 2003 Act states: “(1)     In any proceedings, the High Court, the Court of Appeal or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of section 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.” 37 .     Sections 5(2) to 5(5) set down the effects of a declaration of invalidity. A declaration does not affect the validity, ongoing operation or enforcement of the provision or rule or prevent a further application to the Court. The declaration must be laid before the Oireachtas . The party may then apply to the Attorney General for compensation in respect of any injury, loss or damage suffered as a result of the incompatibility, and the Government, in their discretion, may make an ex gratia payment of an amount in compensation they consider appropriate, having regard to the principles and practice applied by the Court in affording just satisfaction to an injured party under Article 41 of the Convention. Irish social welfare system Background to the State Pension (Contributory) 38.     A non-contributory, means-tested old age pension, now the State pension (non-contributory), was first introduced in 1908. The Social Welfare (Insurance) Act 1952 established a single co-ordinated insurance scheme for unemployment, widows, orphans, pensions, and national health based on a single Social Insurance Fund into which all contributions are paid and out of which