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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> State (Gilliland) v. Governor of Mountjoy Prison [1986] IESC 3; [1987] ILRM 278 (24th July, 1986) URL: http://www.bailii.org/ie/cases/IESC/1986/3.html Cite as: [1987] ILRM 278, [1986] IESC 3 |
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1.
This is a case stated by Barrington J pursuant to Article 40.4.3.° of the
Constitution for the opinion of the Supreme Court as to whether a law
consisting of the Extradition Act 1965 (Part II) (No. 20) Order 1984 being S.I.
No.300 of 1984 is invalid having regard to the provisions of Article
29.5.2° of the Constitution by reason of the fact that the terms of the
Treaty on Extradition between Ireland and the United States of America were not
approved by Dáil Éireann.
2. Certain
preliminary issues arise which it is necessary for the members of this Court to
decide before considering the question raised in the case stated. They are:
4. The
applicant was at the time of his application to Barrington J for an inquiry
under Article 40 of the Constitution as to the legality of his detention,
detained in pursuance of an order made by the District Court under, s. 29 of
the Extradition Act 1965. That order was made on an assumption that Part II of
the Act of 1965 applied to the United States of America which was the
requesting country. A Treaty of Extradition between Ireland and the United
States was signed subject to ratification on behalf of both Governments on 13
July 1983. I t was subsequently ratified on behalf of Ireland by the Minister
of Foreign Affairs on 14 November 1984 and was also duly ratified on behalf of
the United States of America.
5. The
Government, on 20 November 1984, in exercise of the powers conferred on them by
s. 8 of the Extradition Act 1965, having recited the making and ratification of
that Treaty, applied Part II of the Extradition Act 1965 in relation to the
United States of America.
7. Where
a country in relation to which this Part applies, duly requests the surrender
of a person who has been proceeded against in that country for an offence or
who is wanted by that country for the carrying out of a sentence, that person
shall, subject to and in accordance with the provisions of this Part, be
surrendered to that country.
8. The
Treaty was laid before Dáil Éireann and Seanad Éireann but
no resolution was passed by Dáil Éireann approving of its terms.
9. The
decision of Barrington J leading to the stating by him of the case under
Article 40.4.3° was that the Treaty was an international agreement
involving a charge upon public funds within the meaning of Article 29.5.2°
of the Constitution and that its terms not having been approved by Dáil
Éireann it did not accordingly bind the State. He held that as a
consequence the order made by the Government was invalid having regard to the
provisions of the Constitution, in that it purported by applying the provisions
of the Act of 1965 and, in particular, ss. 8 and 9 thereof, to the United
States of America to bind the State with the Treaty.
10. The
provisions of Article 40.4.3° are as follows:
11. Where
the body of a person alleged to be unlawfully detained is produced before the
High Court in pursuance of an order in that behalf made under this section and
that Court is satisfied that such person is being detained in accordance with a
law but that such law is invalid having regard to the provisions of this
Constitution, the High Court shall refer the question of the validity of such
law to the Supreme Court by way of Case Stated and may, at the time of such
reference or at any time thereafter, allow the said person to be at liberty on
such bail and subject to such conditions as the High Court shall fix until the
Supreme Court has determined the question so referred to it.
12. S.
8( l)of the Act of 1965 which is at the commencement of Part II of the Act,
provides as follows:
13. Where
by any international agreement or convention to which the State is a party an
arrangement (in this Act referred to as an Extradition Agreement) is made with
another country for the surrender by each country to the other of persons
wanted for prosecution or punishment or where the Government are satisfied that
reciprocal facilities to that effect will be afforded by another country, the
Government may by order apply this Part in relation to that country.
14. The
remainder of Part II of the Act, consisting of thirty-two further sections,
constitutes a complete and comprehensive code for the extradition of persons
from the State.
15. By
virtue of s. 4 of the Act of 1965 every order made by the Government under the
Act, including, of course, orders made by the Government under s. 8 of the Act,
must be laid before each House of the Oireachtas as soon as may be after it is
made and may be annulled by a resolution passed by either House within the next
21 days on which that House has sat after the order is laid before it.
16. The
provisions of Article 40.4.3° of the Constitution were considered by this
Court in
The
State
(
Sheerin)
v
Kennedy
[ 1966] IR 379. In that case a judge of the High Court had stated a case on the
hearing of an application for habeas corpus to the Supreme Court as to the
validity having regard to the provisions of the Constitution of s. 2 of the
Prevention of Crime Act 1908.
17. The
issue which fell to be decided by this Court in that case accordingly was as to
whether a statute passed by the Parliament of the former United Kingdom of
Great Britain and Ireland which was in force at the time of the enactment of
the Constitution and was carried forward pursuant to Article 50 to the extent
that it was no inconsistent with the provisions of the Constitution was a law
within Article 40.4.3°. The decision of this Court was that it was not. In
reaching that decision the judgment, which was the unanimous judgment of the
court, was delivered by Walsh J and states in conclusion on this aspect of the
case that Article 40.4.3° applied only to Jaws enacted by the Oireachtas.
18. The
question as to whether legislation in the form and of the type with which we
are concerned in this ease was a law within Article 40.4.3° did not arise
in
The
State (Sheerin) v
Kennedy
[1965] I.R. 379 nor was any reference made either in argument or in the
judgment to that situation. In so far, therefore, as the judgment might be
interpreted as absolutely confirming Article 40.4.3° to statutes enacted
by the Oireachtas, it would be obiter and for the reasons which I am about to
outline, I would not be disposed to follow it.
19. The
legislative scheme of the Act of 1965 is straightforward and clear. The
Oireachtas enacted in great detail the provisions which would apply to
extradition and then presumably anticipating the likelihood that from time to
time by reason either of agreements or by reason of the existence of reciprocal
arrangements, the Act would become applicable to various other States, instead
of the necessity for a separate new statute on each occasion, applying the Act
of 1965 to each successive State to make such arrangements, empowered the
Government to do so by order, retaining to each House of the Oireachtas the
power to annul that order.
20. The
applicant at the time of his application to the High Court was detained
pursuant to an order made by the District Court under s. 29 of the Act of 1965
on the assumption that the Government order made that sanction applicable to him.
21. It
seems to me that the law in accordance with which the applicant was detained
within the meaning of Article 40.4.3° is a combination of s. 29 of the Act
of 1965 and the Government order applying Part II of the Act to the United
States of America.
22. As
is stated in the judgment in
The
State (Sheerin) v Kennedy
,
this Article of the Constitution was introduced by amendment at a time when the
decision of the former Supreme Court was to the effect that there was no appeal
by the respondent against an order of
habeas
corpus.
23. The
form of procedure provided by it, however, must in my view, be taken to have
had the intention of ensuring that a person should not finally be discharged
from custody authorised by the legislative provisions of the Oireachtas until a
final decision with regard to the validity, having regard to the Constitution,
of those legislative provisions had been made by this Court. It would appear,
therefore, logical that the Article and the procedure created by it should
apply not only to the statutory provision expressly enacted by the Oireachtas
in this case, namely, the Extradition Act 1965, but also to the machinery
expressly created in that Act for the application of Part II of it by
Government order.
24. I
am, therefore, satisfied that the order made by the Government in this case is
a law within Article 40.4.3° and that this Court has jurisdiction to
answer the question raised in the case stated to it.
25. With
regard to the second issue, the position appears to me clear. The matter which
is referred, under Article 40.4.3° for the determination of the Supreme
Court is the ‘validity of such law’. The decision of this Court on
the case stated must inevitably be a decision on a question as to the validity
of a law, having regard to the provisions of the Constitution and, as such,
must be captured by the provisions of Article 34.4.5° which provides that
the decision of the Supreme Court on a question as to the validity of a law,
having regard to the provisions of this Constitution, shall be pronounced by
such one of the judges of that court as that court shall direct, and no other
opinion on such question, whether assenting or dissenting, shall be pronounced,
nor shall the existence of any such other opinion be disclosed.
26. I
am, therefore, satisfied that the answer to the case stated to be given by this
Court must be given as a single judgment.
27. I
intend to deal only with the single issue whether SI No. 300 of 1984 referred
to in the case stated by the High Court is a ‘law’ within the
meaning of Article 40.4.3° so as to give jurisdiction to the High Court
judge to state the case to this Court.
28. Article.
40 of the Constitution deals with personal rights. By Article 40.3.1°,
‘The State guarantees in its laws to respect, and, as far as practicable,
by its laws to defend and vindicate the personal rights of the citizen’.
Article 40.4.1°, states ‘No citizen shall be deprived of his
personal liberty save in accordance with law’. Article 40.4.2°
provides for a complaint to any judge of the High Court by a person claiming
that he or she is being unlawfully detained, and directing an enquiry into the
complaint, giving the person in whose custody he is detained, an opportunity to
justify the detention, and to order the release of such person from such
detention unless satisfied that he is being detained in accordance with
the
law.
Article 40.4.3° states:
29. Where
the body of a person alleged to be unlawfully detained is produced before the
High Court in pursuance of an order in that behalf made under this section and
that Court is satisfied that such person is being detained
in
accordance with a law
but that such law is invalid having regard to the provisions of this
Constitution, the High Court shall refer the question of the validity of
such
law
to the Supreme Court by way of Case Stated and may, at the time of such
reference, or at any time thereafter, allow the said person to be at liberty on
such bail and subject to such conditions as the High Court shall fix until the
Supreme Court has determined the question so referred to it.
30. Article
40.4.1° guarantees the right to personal liberty save ‘in accordance
with law’. Law in the context of this sub-article comprises the whole
body of law which includes statutory law, judicial decisions, and
administrative rules and regulations, Unless the High Court is satisfied that
the complainant is being detained in accordance with ‘the law’ it
will order the release of such person from such detention. In this context the
law has the same scope as ‘law’ in subsection 1 to which I have
already referred. However, under Article 40.4.3°, the High Court can state
a case to the Supreme Court when it is satisfied that such person ‘ ...is
being detained in accordance with a law but that such law is invalid having
regard to the provisions of the Constitution...’.
31. Under
Article 15.2.1°, ‘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’. In Article 15.2.2°,
‘Provisions may however be made by law for the creation or recognition of
subordinate legislatures and for the powers and functions of these
legislations’. The provision in this sub-article is for subordinate
legislatures and not what is commonly, but in my view erroneously referred to
as ‘subordinate legislation’. Article 15.3.1° and 2, further
clarify this distinction. In accordance with Article 15.4.1° ‘The
Oireachtas shall not enact any law which is in any respect repugnant to this
Constitution or any provision thereof.’ And under Article 15.4.2°,
‘Every law enacted by the Oireachtas which is in any respect repugnant to
this Constitution or to any provision thereof, shall, but to the extent only of
such repugnancy, be invalid.’
32. I
am satisfied that on a true construction of the Constitution and in particular,
Article 15 therof, the High Court can only refer a case stated under Article
40.4.3° to the Supreme Court regarding a law passed by the Oireachtas
under Article 15 of the Constitution and is precluded from stating a case on
the validity of any other form of law. In the judgment of Hanna J in
Pigs
Marketing
Board v Donnelly
(Dublin)
Ltd
[1939] IR 413:
33. It
is axiomatic that powers conferred upon the Legislature to make laws cannot be
delegated to any other body or authority. The Oireachtas is the only
constitutional agency by which laws can be made. But the Legislature may, it
has always been conceded, delegate to subordinate bodies or departments not
only the making of administrative rules and regulations, but the power to
exercise, within the principles laid down by the Legislature, the powers so
delegated and the manner in which the statutory provisions shall be carried
out. The functions of every Government are no so numerous and complex that of
necessity a wider sphere has been recognised for subordinate agencies, such as
boards and commissions. This has been specially so in this State in matters of
industry and commerce. Such bodies are not law makers; they put into execution
the law as made by the governing authority and strictly in pursuance therewith,
so as to bring about, not their own views, but the result directed by the
Government. (at p. 421)
34. I
adopt this statement of the law and would merely emphasise that the powers
conferred upon the Legislature to make laws cannot be delegated to the
Government or any member of the Government. The Statutory Instrument in this
case made by the Government is like any other Statutory instrument or statutory
order made pursuant to ‘a law’ already enacted by the Oireachtas.
It is not in itself a law within the meaning of Article 40.4.3° but simply
an instrument to give effect to a law already enacted.
35. In
my view the proper manner of testing the issue in the present case would have
been to come to this Court by the ordinary type of appeal if either party was
dissatisfied with the High Court judge's adjudication.
36. For
these reasons I am of opinion that the High Court Judge in the instant case did
not have jurisdiction to state the case to the Supreme Court.
37. Article
40.4.2° of the Constitution requires the High Court to order the release
of any person in custody ‘unless satisfied that he is being detained in
accordance with the law’. There was no material difference between this
subsection and the one it replaced, when this and the succeeding three
subsections were enacted as part of the Constitution during the transitional
period prescribed by Article 51. ‘The law’ in the last line of
subsection 2 must comprise the general body of the law, whatever its origin. So
also ‘law’ in Article 40.4.1°. Article 50.1 provides for the
continuance in operation of ‘the laws’ in force in Saorstát
Éireann ‘until the same or any of them shall have been repealed or
amended by enactment of the Oireachtas’. In
The
State (Sheerin) v
Kennedy
[1966] IR 379 Walsh J, with whose judgment Ó Dálaigh CJ and
Lavery, Haugh and O’Keeffe JJ agreed held that Article 40.4.3° did
not apply to the Prevention of Crime Act 1908, it not being an Act of the
Oireachtas. In
The
State (Brown) v Feran [1967] IR 147
,
Walsh J with whose judgment Ó Dálaigh CJ and Haugh, Budd and
FitzGerald JJ agreed, stated:
38. It
is a matter of history that Article 40.4.3° of the Constitution was
enacted as an amendment to the Constitution in consequence of the decision in
The
State (Burke)
v
Lennon
[1940]
IR 136. That, however, is no reason for changing the opinion I have already
expressed on the true construction of Article 34.4.3°. My opinion does not
create a duplication or an inconsistency in appeals in
habeas
corpus
cases. Article 40.4.3° is confined specifically to cases where the High
Court is satisfied that a person is detained in accordance with a law enacted
since the 27th December 1937- see the decision of this Court in
The
State (Sheerin) v Kennedy
and that such law is invalid having regard to the provisions of the
Constitution. Article 34.4.3° (as controlled by sub-section 4), unlike
Article 40.4.3° is not so confined and may embrace any other case of
habeas
corpus
,
including cases which involve questions of the validity of any law having
regard to the provisions of the Constitution unless the High Court is satisfied
that the detention complained of is in accordance with such law but that such
law is invalid having regard to the provisions of the Constitution. In the
latter event only does Article 40.4.3° become operative. In those
circumstances the case does not fall to be determined under Article
40..4.2°, and the right to release from the detention under that
subsection becomes dependant upon the operation of subsection 3. Those
circumstances also determine the nature of the jurisdiction of this Court by
substituting a consultative case stated, for the ordinary appellate
jurisdiction conferred by Article 34.4.3°, in respect of the validity of
the law in accordance with which the person is detained but not in respect of
any other matters decided in the High Court in the same case, including the
question of the validity of any other law.' (at p. 168)
39. The
sole and exclusive power of making laws for the State is vested in the
Oireachtas (Article 15.2.1°) with the provision for the creation or
recognition of subordinate legislatures (Article 15.2.2°). The latter
power does not appear ever to have been exercised (see Kelly
The
Irish
Constitution
2nd ed. p. 81). In
Cityview
Press v An Chomhairle Oiliúna
[1980] IR 381 this Court said (per O'Higgins CJ):
40. Nevertheless,
the ultimate responsibility rests with the Courts to ensure that constitutional
safeguards remain, and that exclusive authority of the National Parliament in
the field of law-making is not eroded by a delegation of power which is neither
contemplated not permitted by the Constitution. In discharging that
responsibility, the Courts will have regard to where and by what authority the
law in question purports to have been made. In the view of this Court, the test
is whether that which is challenged as an unauthorised delegation of
parliamentary power is more than a mere giving effect to principles and
policies which are contained in the statute itself. If it be, then it is not
authorised; for such would constitute a purported exercise of legislative power
by an authority which is not permitted to do sounder the Constitution. On the
other hand, if it be within the permitted limits -if the law is laid down in
the statute and details only are filled in or completed by the designated
Minister or subordinate body -there is no unauthorised delegation of
legislative power. (at p. 399)
41. The
presumption of constitutionality which attaches to every Act of the Oireachtas
derives from Article 15.4.1° of the Constitution which precludes the
Oireachtas from enacting any law which is in any respect repugnant to the
Constitution or any provision thereof; no such presumption can attach to a
statutory instrument, yet it is maniffest, as the Chief Justice has already
indicated, that if the issue raised in the case stated does concern the
validity of a law within the meaning of Article 40.4.3°, it must come
within the restriction prescribed by Article 34.4.5° - the one judgment
rule - and thereby enjoy a cachet denied, for example, to Acts of the then
Oireachtas between 1922 and 1937. In
Quinn’s
Supermarket Ltd v Attorney General
[1972] IR 1 this Court condemned as constitutionally invalid certain provisions
of the Victuallers’ Shops (Hours of Trading on Weekdays) (Dublin, Dun
Laoghaire and Bray) Order, 1948 made by the Minister for Industry and Commerce
in purported exercise of the powers vested in him by s. 25 of the Shops (Hours
of Trading) Act 1938. Each member of the court (Ó Dálaigh CJ and
Walsh, Budd, FitzGerald and Kenny JJ) expressed his separate opinion, Walsh and
Kenny JJ delivering reasoned judgments, in which Kenny J dissented from the
views of his colleagues.
42. The
preliminary issue as to whether or not it was within the relevant provisions of
Article 40 to state a case in the instant matter does not appear to have been
argued in any depth in the High Court no more than it was in this Court. A most
important principle, is however, involved and I feel bound to express my view.
In the instant case, the prosecutor is not in true custody; he has been, since
shortly after his arrest, and continues to be on bail. One can, however,
readily envisage this same issue of a case stated from the High Court arising
in a variety of other cases, in particular, where penal statutes or part
thereof are brought into force by ministerial order. The wide ranging powers,
for example of the Criminal Justice Act 1984 are activated by an order or
orders of the Minister for Justice either generally or with reference to any
particular purpose or provision. It may be that the validity of such an order
will be challenged on constitutional grounds and the challenge upheld in the
High Court. In such a case where the High Court is satisfied that the detention
is invalid is the High Court, nonetheless, effectively to sanction, if not
detention, certainly significant restrictions on liberty, until such time as
this Court has applied the constitutional template to such an order? (The
reference in this case was ordered by Barrington J on 7 October 1985). I think
not. The limitation imposed by subsection 3 on the right to immediate release
must, in my judgment, be given a meaning restricted to its historical base
which was a judicial decision on the constitutional validity of an Act of the
Oireachtas. (See the passage from the judgment of Walsh J which I have cited).
Admittedly, in Quinn’s Supermarket, there was no detention and the issue
here raised would have been somewhat peripheral; nonetheless, I cannot accept
that the court as then constituted was not alive to the constitutional
obligation of a single judgment in any case involving the validity of a law
having regard to the provisions of the Constitution (Article 34.4.5°). If
the Government order here is reviewable under Article 40.4.3°, then the
several judgments delivered in
Quinn’s
Supermarket
appear to have been in conflict with the requirement of a single judgment.
43. In
my view, neither a statutory instrument not any other form of order made by the
executive or any part of it enjoys the status conferred by Article 40.4.3°
or the cachet given by Article 34.4.5°.
45. This
is a case stated by Barrington J pursuant to Article 40.4.3° of the
Constitution for the opinion of the Supreme Court as\ to whether a law, namely,
the Extradition Act 1965, (Part II) (No.20) Order 1984 (being SI No.300 of
1984) is invalid having regard to the provisions of Article 29.5.2° of the
Constitution by reason of the fact that the terms of the Treaty on Extradition
between Ireland and the United States of America (which is the subject matter
of the order) were not approved by Dáil Éireann.
46. The
applicant was at the time of his application to Barrington J for an enquiry
under Article 40 of the Constitution as to the legality of his detention
detained in pursuance of an order made by the District Court under s. 20 of the
Extradition Act 1965.
47. That
order was made on the assumption that SI No.300 of 1984 being an order made by
the Government pursuant to s. 8 of the Act of 1965 validly applied Part II of
that Act to the United States of America, on the grounds that the State was a
party to an extradition agreement made with the United States of America, which
was the requesting country.
48. A
Treaty of Extradition between Ireland and the United States was signed subject
to ratification on behalf of both Governments on 13 July 1983. It was
subsequently ratified on behalf of Ireland by the Minister for Foreign Affairs
on 14 November 1984 and was also duly ratified on behalf of the United States
of America.
49. The
Treaty was laid before Dáil Éireann and Seanad Éireann but
no resolution was passed by Dáil Éireann approving of its terms.
50. The
decision of Barrington J leading to the stating by him of the case under
Article 40.4.3° was that the Treaty was an international agreement
involving a charge upon public funds within the meaning of Article 29.5.2°
of the Constitution and that its terms not having been approved by Dáil
Éireann, it did not accordingly bind the State. He held that as a
consequence the order made by the Government was invalid having regard to the
provisions of the Constitution in that it purported to apply the provisions of
the Act of 1965 to the United States thus enforcing the Treaty.
52. The
executive power of the State in or in connection with its external relations
shall, in accordance with Article 28 of this Constitution be exercised by or on
the authority of the Government.
53. Article
29.5 provides as follows:
54. Neither
of these sections of Article 29 has been previously interpreted or construed by
any court. It would appear that s. 5 envisages three separate categories of
international agreement, and they are:
55. The
fact that Article 29.5.2° requires not that Dáil Éireann
should approve of the extent or nature of the charge upon public funds, but
rather that it should approve of the terms of the agreement leads to the
conclusion that in the crucial question of interpreting what is an
international agreement involving a charge upon public funds one should look
first to the requirement that it be the terms of the agreement itself which
involves such a charge.
56. In
other words, purely incidental or consequential expenses which may fall on some
of the organs of the State by reason of the adherence of the State to an
international agreement but which are not created by one or other of the terms
of that agreement itself, would make such agreement fit into the category of
international agreements which shall be laid before Dáil Éireann
(provided that they are not merely administrative or technical) but not within
the category of those the terms of which require approval from Dáil
Éireann.
57. Having
regard to that view, the material articles of the Treaty of Extradition between
the State and the United States of America are Articles XVI and XVII.
Subsection 2 of Article XVI states as follows:
58. The
Attorney General of Ireland shall advise and assist, and represent, or provide
for he representation of, the interests of the United States in any proceedings
in Ireland arising out of a request for extradition made by the United States.
59. The
court does not consider that this provision necessarily involves a charge upon
public funds. In its terms it does not seek to impose such a charge, but
imposes instead an obligation on a constitutional officer, namely, the Attorney
General, to advise and assist and represent or provide for the representation
of the interests of the United States in connection with extradition.
60. Article
XVII, however, which is headed 'Expenses' provides as follows:
61. In
the Opinion of the Court both sections of this Article involve a charge upon
public funds. In the event of the State being the Requesting State it has by s.
1 entered into a binding commitment to the United States of America to bear
certain expenses, that is to say, the expense of the translation of documents
and the transportation of the person from the place of the extradition
proceedings to the Requesting State. Such expenses must be borne out of public
funds and the right of the United States to call upon this State to pay them
arises by the direct and express terms contained in s. 1.
62. Equally,
in the case where, as occurs in the instant application, the State is the
Requested State, s. 2 of Article XVII clearly envisages necessary expenditure
by the Requested State arising out of the arrest, detention and extradition
proceedings and surrender of the person being sought and provides an
exoneration or indemnity to the other party to the agreement, the United
States, in respect of that expenditure, which, were it not for that provision,
could presumably be claimed against the United States.
63. The
court, therefore, decides that both sections of Article XVII constitute terms
of this agreement which involve a charge upon public funds, and, that being so,
the State is not bound by the agreement unless and until its terms have been
approved by Dáil Éireann.
64. The
court will therefore answer the question raised in the case stated by declaring
that SI No.300 of 1984 is invalid having regard to the provisions of Article
29.5.2° by reason of the fact that the terms of the Treaty on Extradition
between Ireland and the United States of America were not approved by
Dáil Éireann.