The Relationship between Judicial Remedies and the Separation of Powers: Collaborative Constitutionalism and the Suspended Declaration of Invalidity

Abstract

Recent decisions have suggested a possible degree of support amongst the Irish judiciary for suspended declarations of invalidity. It has been argued (notably in Canada by Peter Hogg and Alison Bushell) that the suspended declaration is an aspect of what they characterise as a dialogical relationship between the courts and the elected branches of government. However, the notion of judicial review as dialogue is criticised by other such as Christopher Manfredi and James Kelly.

It is argued here that the suspended declaration might more appropriately be regarded as reflective of a relationship of collaborative constitutionalism.

Having considered arguments from institutional capacity and constitutional theory, it would appear that the adoption of the suspended declaration of invalidity as a remedy by the Irish courts may bring substantial benefits. The suspended declaration of invalidity is a remedy which would allow the courts to move beyond a binary choice between declaring a measure to be valid or invalid and develop a more carefully calibrated response in those limited situations where the preservation in force of an unconstitutional law is preferable to the legal discontinuity that would otherwise result.

The piece concludes by considering what criteria might be used to identify when a suspended declaration is appropriate. It suggests that the Canadian jurisprudence on this issue is unduly strict and that the Irish courts should favour a more expansive approach.