![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Supreme Court of Ireland Decisions |
||
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Laurentiu v. Minister for Justice [1999] IESC 47; [1999] 4 IR 26; [2000] 1 ILRM 1 (20th May, 1999) URL: http://www.bailii.org/ie/cases/IESC/1999/47.html Cite as: [1999] 4 IR 26, [2000] 1 ILRM 1, [1999] IESC 47 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
1
. This
is an appeal by the Respondents (hereinafter referred to as the State) against
the decision of the High Court, Mr. Justice Geoghegan, delivered on the 22nd
January, 1999. The Learned High Court Judge granted a declaration that Section
5
(l)(e)
of the Aliens Act, 1935 was not carried over by
Article
50
of
the Constitution of Ireland, was inconsistent with.
Article
15.2
of
the Constitution of Ireland and does not form part of Irish law. The Learned
High Court Judge also made consequential declarations that
Article
13 (
1
) of
the Aliens Order, 1946 and the Deportation Order regarding the
Applicant/Respondent in this case were invalid.
2. The
case turns on the issue as to whether the legislature could, in the terms of
Section
5(1
)(e)
of
the Aliens Act, 1935 delegate to the Minister the power to deport aliens, or
whether it is an impermissible delegation of legislative power contrary to
Article
15.2.
1
of the Constitution of Ireland.
3. Mr.
John Finlay, S.C., on behalf of the State, submitted that
s.5(1
)(e)
of
the Miens Act, 1935 and Regulation 13 of the Aliens Order, 1946 are valid. He
submitted that the right of the State to control the entry of aliens, their
activity in the State and their departure, is part of the sovereign rights of
the State. The exercise of that control is primarily an executive and
administrative function. The entitlement of aliens is dependent on the consent
of the appropriate authority. If that consent is refused or withdrawn the alien
has no right to stay in the State. He submitted that what the Minister did was
within the four corners of the Aliens Act,
1935.
He
submitted that the policy of the Act is clear: aliens are only allowed into the
State and to remain in the State with the permission of the Minister for
Justice. The relevant
4. Mr.
Gerard Hogan, S.C., Counsel for the Applicant, submitted that s.5(1
)(e) of the
Aliens Act, 1935 gave excessive legislative powers to the Minister for Justice
in that it effectively left the Minister at large insofar as the making of a
Ministerial Order was concerned and it did not set out principles and policies
upon which deportation orders were to be made; consequently, it did not survive
the enactment of the Constitution. Further, he submitted that
Article
13 of the
Aliens Order, 1946 is a form of legislation outside the powers of legitimate
delegation and contrary to
Article
15.2.
1
of the Constitution of Ireland. In
oral argument he considered that there were three issues for the Court:
5. The
relevant constitutional articles
are:
6. The
statutory scheme is the
Aliens
Act,
1935
(No.
14 of 1935) hereinafter referred to as ‘the Act’. The long title of
the Act described it as:
8. As
a consequence of that legislation the Minister for Justice enacted the
Aliens
Order
,
1946, (5 .R. & 0. 395 of 1946). Regulation 13 thereof stated:
9. There
has been significant case law on Article
15.2.
1
of the Constitution. The first
important analysis was in
Pigs
Marketing Board v. Donnelly (Dublin), Ltd.
[1939]
1
IR 413. In that case Hanna J. stated at p.421:
10. Here,
in effect, is the beginning of the principles and policies test. In this case
it was alleged that the Pigs and Bacon Acts,
1935
and
1937 were unconstitutional under Article
12 of the 1922 Constitution whereby
the legislature was given exclusive power to make laws and also
unconstitutional under
Article
15 of the Constitution of Ireland, 1937.
11
. The
first modem statement of a principles and policy test was in
Cityview
Press Limited v. An Chomhairle Oiliúna
[1980]
1
IR 381 where at pp. 398-399 O’Higgins C.J. stated:
12. This
important case was itself based on a situation where, as McMahon J. stated in
the High Court,
13. The
principles and policies test continued to be applied. Thus, in
The
State (Gilliland) v. The Governor of Mountjoy Prison
[1987] IR 201 Barrington J., having referred to the
Cityview.Press
case, stated at p.222:
14. The
Learned Judge applied the principles and policies test to the relevant Act.
However, the decision as to whether Ireland should enter into an extradition
treaty with a particular country and the incorporation of additional
safeguards, if any, was left to the Government. It is of relevance to this case
to note that the function in issue - to determine whether an extradition treaty
should be entered into with a particular country - is a classic example of an
executive function. The legislature did not impinge on the executive function.
The legislature did not delegate the power to a Minister. The executive,
Government, proceeds with its function.
16. The
Courts have held this type of delegated legislation to be unconstitutional,
even if it does not create a new principle. This type of delegated legislation
is not in issue in this case. Finlay C.J. set out at pp. 240-241 a methodology.
He stated:
17. This
methodology applies the presumption of constitutional validity: the rule of
construction that where there are two or more reasonable constructions that
which is constitutional will prevail. Specifically, it must be implied that the
making of delegated legislation by the Minister is intended by the legislature
to be in accordance with constitutional justice. It may be summarised by
inquiring if the impugned regulation makes it necessary or inevitable that the
Minister making regulations pursuant to the power must invade the power of the
legislature contrary to Article
15.2.
This
‘necessary or inevitable’ test is apt in construing Henry VIII
clauses, which was the issue in
Harvey
v. The Minister for Social Welfare
.
18. The
Oireachtas is no longer the sole and exclusive legislature for the State.
European Union Law applies directly to Ireland and membership necessitates
certain legislation in Ireland. 5.3(2) of the European Communities Act, 1972
enables Ministers by regulation to implement the law. It was held in
Meagher
v. The Minister for Agriculture
[1994]
1
IR 329
19. Thus
even where, as in this case, the regulation amended a statute it was not a
breach of Article
15.2 because it did not determine principles or policies -
rather those principles and policies had been determined in the relevant
Council directives, which are binding as to the results to be achieved.
20. This
analysis is of interest to the Henry VIII type clause - but is tangential to
this case. However, it does show the strength of the principles and policies
test in our jurisprudence.
21. Counsel
referred to comparative case law. Cases of the United States of America appear
to have exercised an influence on the decision in
Pigs
Marketing Board v. Donnelly (Dublin), Ltd
.
It is of importance to note that there is not a great body of jurisprudence in
the United States on this aspect of constitutional law.
22. “The
Constitution provides that “All legislative powers herein granted shall
be vested in a Congress of the United States, which shall consist of a Senate
and House of Representatives.” Art.I,
§
1
.
And the Congress is empowered “To make all laws which shall be necessary
and proper for carrying into execution” its general powers. Art.I,
§
8,
par. 18. The Congress manifestly is not permitted to abdicate, or to transfer
to others, the essential legislative functions with which it is thus vested.
Undoubtedly legislation must often be adapted to complex conditions involving a
host of details with which the national legislature cannot deal directly. The
Constitution has never been regarded as denying to the Congress the necessary
resources of flexibility and practicality, which will enable it to perform its
function in laying down policies and establishing standards, while leaving to
selected instrumentalities the making of subordinate rules within prescribed
limits and the determination of facts to which the policy as declared by the
legislature is to apply. Without capacity to give authorizations of that sort
we should have the anomaly of a legislative power which in many circumstances
calling for its exertion would be but a futility. But the constant recognition
of the necessity and validity of such provisions, and the wide range of
administrative authority which has been
24. In
the same year in
A.L.A.
Schechter Poultry Corp. et al v. United States
(1935) 295 U.S. 495
the
Court stated at p.528:
25. The
Court applied the test set out in
Panama Refining Co. v. Ryan
and
looked to the statute to see if Congress had overstepped these limitations -
whether it had itself established the standards of legal obligation, thus
performing the essential legislative function or by failure to enact the
standards had attempted to transfer the function to others. Whilst neither
26. Arising
out of concern about sentencing disparities the U.S. Congress passed the
Sentencing Reform Act, 1984 which established the United States Sentencing
Commission as an independent body in the Judicial Branch with power to create
binding sentencing guidelines establishing a range of determinate sentences for
all categories of federal offences and defendants according to specific and
detailed factors. In
Mistretta
v. United States
(1989) 488 U.S. 361 the petitioner claimed that the Commission constituted a
violation of the separation of powers principle and that Congress had delegated
excessive authority to the Commission to structure the Guidelines. It was held
that the Sentencing Guidelines were constitutional since Congress neither (1
)
delegated excessive legislative power to the Commission nor (2) violated the
separation of powers principle by placing the Commission in the Judicial
Branch, by requiring federal judges to serve on the Commission and to share
their authority with non-judges or by empowering the President to appoint
Commission members and to remove them for cause. On the delegation of power
issue Justice Blackmun in delivering the opinion of the Court stated at p.371:
27. “The
nondelegation doctrine is rooted in the principle of separation of powers that
underlies our tripartite system of Government. The Constitution provides that
“[a]ll legislative Powers herein granted shall be vested in a Congress of
the United States,” U.S. Const., Art I.
§
1
,
and we long have insisted that “the integrity and maintenance of the
system of government ordained by the Constitution” mandate that Congress
generally cannot delegate its legislative power to another Branch.
Field
v. Clark,
143
U.S. 649, 692 (1892). We also have recognized, however, that the
separation-of-powers principle, and the nondelegation doctrine in particular,
do not prevent Congress from obtaining the assistance of its coordinate
Branches. In a passage now enshrined in our jurisprudence, Chief Justice Taft,
writing for the Court, explained our approach to such cooperative ventures:
“In determining what [Congress] may
28. Applying
this “intelligible principle” test to congressional delegations,
our jurisprudence has been driven by a practical understanding that in our
increasingly complex society, replete with ever changing and more technical
problems, Congress simply cannot do its job absent an ability to delegate power
under broad general directives. See
Opp
Cotton Mills, Inc. v. Administrator, Wage and Hour Div. of Dept. of Labour,
312
U.S. 126, 145 (1941) (“In an increasingly complex society Congress
obviously could not perform its functions if it were obliged to find all the
facts subsidiary to the basic conclusions which support the defined legislative
policy”); see also
United
States v. Robel,
389
U.S. 258, 274 (1967) (opinion concurring in result). “The Constitution
has never been regarded as denying to the Congress the necessary resources of
flexibility and practicality, which will enable it to perform its
function.”
Panama
Refining Co. v. Ryan,
293
U.S. 388, 421(1935). Accordingly, this Court has deemed it
“constitutionally sufficient if Congress clearly delineates the general
policy, the public agency which is to apply it, and the boundaries of this
delegated authority.”
American
Power & Light Co.
v.
SEC, 329 U.S. 90, 105 (1946).
29. In
light of our approval of these broad delegations, we harbour no doubt that
Congress’ delegation of authority to the Sentencing Commission is
sufficiently specific and detailed to meet constitutional requirements. Congress
charged
the Commission with three goals: to “assure the meeting of the purposes
of sentencing as set forth” in the Act; to “provide certainty and
fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing
disparities among defendants with similar records ... while maintaining
sufficient flexibility to permit individualized sentences”, where
appropriate; and to “reflect, to the extent practicable, advancement in
knowledge of human behaviour as it relates to the criminal justice
process.” 28 U.S.C.
§
991(b)(l).
Congress further specified four “purposes” of sentencing that the
Commission must pursue in carrying out its mandate: “to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense”; “to afford adequate deterrence to
criminal conduct”; “to protect the public from further crimes of
the defendant”; and “to provide the defendant with needed ...
correctional treatment.” 18 U.S.C.
§
3553(a)(2).
30. In
addition, Congress prescribed the specific tool - the guidelines system - for
the Commission to use in regulating sentencing. More particularly, Congress
directed the Commission to develop a system of “sentencing ranges”
applicable “for each category of offense involving each category of
defendant”. 28 U.S.C. §994(b). Congress instructed the Commission
that these sentencing ranges must be consistent with pertinent provisions of
Title 18 of the United States Code and could not include sentences in excess of
the statutory maxima. Congress also required that for sentences of
imprisonment, “the maximum of the range established for such a term shall
not exceed the minimum of that range by more than the greater of 25 percent or
6 months, except that, if the minimum term of the range is 30 years or more,
the maximum may be life imprisonment.” §994(b)(2). Moreover,
Congress directed the Commission to use current average sentences “as a
starting point” for its structuring of the sentencing ranges. §994(m).
31. To
guide the Commission in its formulation of offense categories, Congress
directed it to consider seven factors: the grade of the offense; the
aggravating and mitigating circumstances of the crime; the nature and degree of
the harm. caused by the crime; the community view of the gravity of the
offense; the public concern generated by the crime; the deterrent effect that a
particular sentence may have on others; and the current incidence of the
offense. §§994(c)(1
)-(7). Congress set forth
11
factors for the
Commission to consider in establishing categories of defendants. These include
the offender’s age, education, vocational skills, mental and emotional
condition, physical condition (including drug dependence), previous employment
record, family ties and responsibilities, community ties, role in the offense,
criminal history, and degree of dependence upon crime for a livelihood.
§994(d)(
1
)-(l
1
). Congress also prohibited the Commission from considering
the “race, sex, national origin, creed, and socio-economic status of
offenders,”
§
994(d),
and instructed that the guidelines should reflect the “general
inappropriateness” of considering certain other factors, such as current
unemployment, that might serve as proxies for forbidden factors,
§
994(e).
32. In
addition to these overarching constraints, Congress provided even more detailed
guidance to the Commission about categories of offenses and offender
characteristics. Congress directed that guidelines require a term of
confinement at or near the statutory maximum for certain crimes of violence and
for drug offenses, particularly when committed by recidivists. §994(h).
Congress further directed that the Commission assure a substantial term of
imprisonment for an offense constituting a third felony conviction, for a
career felon, for one convicted of a managerial role in a racketeering
enterprise, for a crime of violence by an offender on release from a prior
felony conviction, and for an offense involving a substantial quantity of
narcotics. §994(i). Congress also instructed “that the guidelines
reflect ... the general appropriateness of imposing a term of
imprisonment” for a crime of violence that resulted in serious bodily
injury. On the other hand, Congress directed that guidelines reflect the
general inappropriateness of imposing a sentence of imprisonment “in
cases in which the defendant is a first offender who has not been convicted
33. We
cannot dispute petitioner’s contention that the Commission enjoys
significant discretion in formulating guidelines. The Commission does have
discretionary authority to determine the relative severity of federal crimes
and to assess the relative weight of the offender characteristics that Congress
listed for the Commission to consider. See
§
§994(c)
and (d) (Commission instructed to consider enumerated factors as it deems them
to be relevant). The Commission also has significant discretion to determine
which crimes have been punished too leniently, and which too severely.
§994(m). Congress has called upon the Commission to exercise its judgment
about which types of crimes and which types of criminals are to be considered
similar for the purposes of sentencing.
34. But
our cases do not at all suggest that delegations of this type may not carry
with them the need to exercise judgment on matters of policy. In
Yakus
v. United States,
321
U.S. 414 (1994), the Court upheld a delegation to the Price Administrator to
fix commodity prices that “in his judgment will be generally fair and
equitable and will effectuate the purposes of this Act” to stabilize
prices and avert speculation. See id, at 420. In
National
Broadcasting Co. v. United States,
319
U.S. 190 (1943), we upheld a delegation to the Federal Communications
Commission granting it the authority to promulgate regulations in accordance
with its view of “public interest”. In
Yakus,
the
Court laid down the applicable principle:
35. Developing
proportionate penalties for hundreds of different crimes by a virtually
limitless array of offenders is precisely the sort of intricate,
labour-intensive task for which delegation to an expert body is especially
appropriate. Although Congress has delegated significant discretion to the
Commission to draw judgments from its analysis of existing sentencing practice
and alternative sentencing models, “Congress is not confined to that
method of executing its policy which involves the least possible delegation of
discretion to administrative officers.”
Yakus
v. United States,
321
U.S., at 425-426. We have no doubt that in the hands of the Commission
“the criteria which Congress has supplied are wholly adequate for
carrying out the general policy and purpose” of the Act.
Sunshine
Coal Co. v. Adkins,
310
U.S. 381, 398 (1940).”
36. This
judgment sets out clearly the policies established by the legislature of the
United States. The Supreme Court of the United States applied the
“intelligible principle” test and found the delegation to be
sufficiently specific and detailed. It found that Congress had requested the
Commission to meet three goals which were spelt out. Further, Congress
specified four purposes which the delegated authority must pursue, Congress
prescribed the tool for the Commission to use and Congress directed the
Commission, as a guide, to consider seven specified factors. In addition,
Congress set forth eleven factors for the Commission to consider in
establishing categories and the Congress also provided detailed guidance about
categories of offences and offender characteristics. This case shows modem
legislation in the United States of America giving a delegated discretion yet
with detailed principles and standards set out by the legislature.
37. Comparative
case law was also cited from Australia.
In
Chu Kheng Lim and Ors. v. Minister for Immigration. Local Government and Ethnic
Affairs and Another
(1992) 176 C.L.R. 1
, the High Court of Australia considered the nature of the
power to deport aliens.
38. Mason
C.J. described (at p.1
0)
the authority to deport an alien as “an incident of executive
power”. Brennan, Deane and Dawson JJ. in a joint judgment stated at pp.
29-30:
39. The
question for consideration in
Attorney
General (Canada) v. Cain
was whether the Canadian statute 60 and 61 Vict. c. 11
had validly clothed the
Dominion Government with the power to expel an alien and to confine him in
custody for the purpose of delivering him to the country whence he had entered
the Dominion. The Judicial Committee concluded that it had. As the emphasised
words in the above passage indicate, the power to expel or deport a particular
alien, and the associated power to confine under restraint to the extent
necessary to make expulsion or deportation effective, were seen as prima facie
executive in character.
40. In
this Court, it has been consistently recognized that the power of the
Parliament to make laws with respect to aliens includes not only the power to
make laws providing for the expulsion or deportation of aliens by the Executive
but extends to authorising the Executive to restrain an alien in custody to the
extent necessary to make the deportation effective.”
41. In
this case we see the principle that control of aliens is prima facie a matter
for the executive. Also touched upon is the matter of the transfer of power to
a Dominion and the role of Parliament and the executive. However, the cases do
not refer to or relate to a country with a written Constitution where the
separation of powers has been established and is relevant to the issue. The
cases relate to British constitutional governance with the royal prerogative
and parliamentary sovereignty, not a written Constitution with a separation of
powers, such as is found in Ireland and the United States of America.
42. This
is the first challenge to the Aliens Act, 1935 on Article
15.2
grounds.
It is a novel issue upon which to review the Act. As O’Dalaigh C.J. said in
The State (Quinn) v. Ryan
[1965] IR 70 at p. 120:
43. An
echo of that wording may be seen in the Constitution of Ireland, 1937. It
established clearly that the law-making authority for the State - the sole and
exclusive power of making laws for the State - is vested in the Oireachtas.
44. That
legislative power must be seen in the context of the Constitution of Ireland as
a whole. The scheme created by the Constitution is based on the separation of
powers. Ireland is a democratic State: Article
5. All powers of government,
legislative, executive and judicial derive from the people:
Article
6.
1
. These
powers are exercisable only by the organs of State established by the
Constitution:
Article
6.2. In a classic exposition of the separation of powers
three branches of government are established. To the legislature is given the
sole and exclusive powers of making laws:
Article
15.2.
1
To
the government is given the executive power of the State:
Article
28.2 To the
judges is given the judicial power:
Article
34.
1
.
45. Thus,
the general structure of the Constitution follows the doctrine of the
separation of powers. A similar approach, though not identical, can be seen in
the Constitution of the United States of America. The Irish structure is not a
simple or clear-cut separation of powers. There is overlapping and impingement
of powers. However, in a general sense there is a functional division of power.
46. Historically,
the control of aliens is for the executive. Aliens are not mentioned in the
Constitution. However, the executive of a State, as an incident of sovereignty,
has power and control over aliens. If this case simply raised the issue of the
nature and extent of executive power as to aliens it would be a different
matter. It does not.
47. The
nature of sovereignty is not in issue. Nor is the ambit of the executive powers
of the State. At issue is the power of the legislature to delegate. If the Act
had never been passed then issues of sovereignty and executive powers would
have been relevant. But the legislature having seized itself of the subject,
its power to delegate, as it purported to do to the Minister, is the kernel of
the case and the issue for decision. The constitutional power of the
legislature to legislate being found in Article
15.2,
this
case falls to be decided in the light of that
Article
and relevant case law.
48. The
Oireachtas is the legislative organ of the State. It has the exclusive power to
legislate under the Constitution, subject to the European Union which does not
arise in this case. However, it must exercise this power in accordance with the
Constitution. Article
15.2
means
that there are limits on the Oireachtas - while it is given the power to
legislate it is the sole body with that power and as such has a duty to
legislate and is constitutionally prohibited from abdicating its power. In
accordance with the Constitution it is for the Court to determine whether the
constitutional framework has been breached.
49. There
are limits to permissible delegation by the organs created by the Constitution.
The Oireachtas may not abdicate its power to legislate. To abdicate would be to
impugn the constitutional scheme. The scheme envisages the powers (legislative,
executive, judicial) being exercised by the three branches of government - not
any other body. The framework of the Constitution, the separation of powers,
the division of power, retains a system which
50. According
to the Constitution and the law it is for the Oireachtas to establish the
principles and policies of legislation. It may delegate administrative,
regulatory and technical matters. The principles and policies test has been
part of Irish case law since 1939 - as has been set out earlier in this
judgment. It is somewhat similar to the case law requiring standards to be set
by the legislature, for delegated legislation, in the United States of America.
51. The
principles and policies test must be applied in accordance with constitutional
presumptions as to the interpretation of legislation (favouring that which is
constitutional) and presuming actions by Ministers and officials will be made
in a constitutional fashion. However, none of these presumptions can determine
this case. As this is not a Henry VIII clause case I reach no conclusions on
that type of delegated legislation. Insofar as
Harvey
v. The Minister for Social Welfare
related to a situation where it was purported to amend legislation by
regulation, a special issue not relevant here, I find it neither relevant nor
helpful.
52. There
has not been extensive analysis of the principles and policies test. Partly
this is because of the very nature of the issue. Each case depends on its own
facts and requires that the principles and policies of those matters be set out
in the legislation.
53. Mr.
Finlay, S.C. for the State, submitted that the policy created by the
legislature was that aliens were only allowed in the State and to remain in the
State with the consent of the Minister. It is clear that the Oireachtas
intended that aliens would be deported if in the opinion of the Minister the
common good so required. However, principles and policies such as those
discussed in
Cityview
and
McDaid
are not present. Standards, goals, factors, and purposes such as those set out
in
Mistretta
are absent.
54. Counsel
referred to factors which he argued were important in relation to this
delegated legislation. Thus, the orders to be made by the Minister under
Section 5 are subject to the provisions of Section 5 (8) which require them to
be laid before the Houses of Parliament; the powers of the Minister are subject
to the provisions of Section
5
(4)
and Section
5
(5)
of
the Act as well as other legislative measures such as the free movement
provisions of European Union law to which effect is given in the State
principally through the European Communities (Aliens) Regulations, 1977; the
Minister must act in accordance with constitutional justice and fair
procedures; although the deportation power is administrative/executive it is
accepted that the Minister is subject to review by the Courts in accordance
with the principles established in
The
State (Lynch) and Cooney,
[1982] I.R .337 and
O’Keeffe
v. An Bord Pleanála
[1993] 1
IR 39 the Minister’s powers are subject to the provisions of the
Constitution, (see for example
Fajujonu
v. The Minister for Justice
[1990] 2 IR 151 where the family law principles of the Constitution came into play);
the rule-making power in this case is the Minister who is politically
accountable to the Oireachtas.
55. However,
the two Houses of Parliament are not the Oireachtas; most of the legislative
restrictions on the Minister are post-1935 and are not helpful to the
interpretation of
s.5
(l)(e);
even though the Minister must act in accordance with the principles of
constitutional justice this does not correct the situation if there has been an
unconstitutional delegation of
56. If
there had been no legislation the situation would have a parallel to that of
the issue of passports. That also is a classic example of an exercise of the
executive power of a Sovereign Nation. There has been no legislation on this
matter in Ireland. The scheme is run by a Minister of the executive. It must be
run in a constitutional and fair manner. However, there is no issue of the
constitutional ambit of delegated legislation as the Oireachtas has not sought
to give the powers to the Minister.
57. The
inherent authority of the State and The powers of the State incidental to
sovereignty are not relevant. The issue in this case is net - the power of the
legislature to delegate.
58. This
case turns on Article
15.2
of
the Constitution and its interpretation as regards delegated legislation. This
raises the principles and policies test. One searches in vain to find
principles and policies regarding deportation of aliens in the Act. The
legislature grasped the power over aliens from the executive and then delegated
inadequately to the Minister. It abdicated its power.
59. The
Act was enacted at a time when the constitutional jurisprudence of the new
State was unfolding and authority still being transferred one way or another to
the new nation. The 1922 Constitution was in force. The principles test by
Hanna J. was yet to be decided and the
60. Analysed
in accordance with Article
15.2,
as
must be done, the Act was an abdication of the legislature’s duty to set
policies and principles. The power of the legislature must be protected. The
power is for that body for the benefit of democratic government and may not be
surrendered.
61. This
case did not raise for decision any issue on the sovereign power of the State
nor the inherent powers of the State. Thus, neither have been addressed.
63. This
appeal raises a net point on the consistency, or otherwise, with the
Constitution of Section
5
(1
)
(e) paragraph (e) of the Aliens Act,
1935.
64. The
Applicant/Respondent (hereinafter referred to as the Applicant) was the subject
of an Aliens Order made by the Minister pursuant to the provisions of Article
13 of the Aliens Order, 1946 (No. 395 of 1946). This Court has already held
that
Article
13 of the Aliens Order, 1946 is
intra
vires
the
powers of the Minister under Section
5(
1
)
(e)
of the Aliens Act, 1935. (See Tang v. Minister for Justice [1996] 2 ILRM 46).
The question for consideration in this case is whether the general power of
deportation contained in Section 5(
1
) (e) of the Aliens Act, 1935 is itself
consistent with the Constitution.
66. An
alien is defined as a person who is not a citizen of Saorstát Eireann.
The Act entitles aliens to hold property and makes them amenable to, and
triable under, the law of Saorstát Eireann to the like extent in all
respects as a citizen.
69. Finally,
Section 11
is in the following form:-
70. Article
12 of the Constitution of the Irish Free State provided,
inter
alia,
as
follows:-
71. For
the purposes of this case I would be of the view that the difference of wording
between the relevant provisions of Article
15 of the present Constitution and
of
Article
12 of the Constitution of the Irish Free State are so slight that if
the Aliens Act, 1935 could be presumed to be not in conflict with the relevant
provisions of the Constitution of the Irish Free State it could also
72. For
many years it was assumed that, because the Constitution of the Irish Free
State could be amended during all of its life by
“ordinary
legislation”
that
any piece of legislation which, incidentally, conflicted with the Constitution
amended
it
pro tanto
even
though it was not expressed to be an Act to amend the Constitution. This
doctrine is derived from a passage in the Judgment of O’Connor M.R. in
R
(Cooney) v. Clinton
(delivered in 1924 but not reported until 1935, see [1935] IR 245
,
247. The passage in question reads as follows:-
73. But
if one looks at Article
50 of the Constitution of the Irish Free State it seems
quite clear that the
Article
uses the term
“ordinary
legislation”
to
distinguish amendments which may, for a limited period, be made by the
Oireachtas itself from amendments which must be submitted to the people by way
of referendum.
74. To
derive from this distinction a doctrine that the Constitution could be amended
by ordinary legislation which need not even be expressed to be a constitutional
amendment showed scant respect to the Constitution. It also assumed that the
Oireachtas had so little respect for the Constitution that they would amend it
without thinking of what they were doing. It also had the practical
disadvantage that one could not find out what the Constitution of the Irish
Free State provided without reading the whole body of Statute law passed since
1922.
75. In
any event this doctrine was abandoned by the modem Supreme Court in Conroy v.
Attorney General
[1965]
JR
411 when it summarily rejected a submission that the Constitution of the Irish
Free State must be taken to have been automatically amended by any provision of
the Road Traffic Act, 1933 which was in conflict with it. (See p. 443)
76. For
these reasons, therefore, I would approach this case on the basis that the onus
of proving that Section
5
(1
)
(e) of the Aliens Act, 1935 is inconsistent with the Constitution rests on the
Applicant.
77. Article
15 Section 2 of the Constitution vests in the Oireachtas
“the
sole and exclusive”
power
of making laws for the State. It is an assertion of the power of the
Oireachtas. That is why, for instance, Section
6
of
the Offences Against the State Act, 1939 makes it a criminal offence punishable
with up to ten years penal servitude for any person to take part in any way in
any body of persons purporting to be a legislature not authorised under the
Constitution. Certainly one could not deduce from the words of
Article
15 alone
that the Oireachtas had not power, within the Constitution, to pass laws of any
particular kind.
78. One
must bear this in mind when considering the case of Cityview Press Ltd. v. An
Chomhairle Oiliúna and Ors. [1980] IR 381. In that case the attack on
the constitutionality of the Industrial Training Act, 1967 was rejected by the
High Court and, on appeal, by the Supreme Court, so that the remarks about the
limitations on the Oireachtas’s capacity to delegate its powers are
obiter.
More
important, in that case Counsel were agreed on the principles to be applied and
the dispute related merely as to how these principles were to be applied. As
McMahon, J. put the matter at p. 389 of the Report:-
79. The
reference to Article
6 is important.
Article
6 provides that all powers of
Government
“legislative,
executive and judicial
‘
derive, under God, from the people and goes on to provide that these powers of
Government are excercisable
“only
by or on the authority”
of
the organs of State established by the Constitution.
80. Counsel
maintained that common approach to the case in the Supreme Court and it is
clear from their submissions that both sides relied on the Theory of Separation
of Powers, and that the problem was how that theory was to be applied to the
particular circumstances of that case. Both sides appear to have been agreed
that one way of reconciling the powers of legislature with those of
81. The
Court accepted these principles, used them to test the Statute, and found that
the Statute survived the test.
82. But
the purpose of the Theory of Separation of Powers is to protect the rights of
the citizen. Absolute power may not be delegated to any executive agency
because to do so would be inconsistent with the rights of the citizen. On the
theory of the separation of powers, the rights of the citizen will be secure
only if the legislature makes the laws, the executive implements them and the
judiciary interprets them.
83. One
of the tasks of legislation is to strike a balance between the rights of
individual citizens and the exigencies of the common good. If the legislature
can strike a definitive balance in its legislation so much the better. But the
problem which confronted the Court in the Cityview Press case is that the facts
of modem society are often so complex that the legislature cannot always give a
definitive answer to all problems in its legislation. In such a situation the
legislature may have to leave complex problems to be worked out on a case by
case basis by the executive. But even in such a situation the legislature
84. This,
as I understand it, was the reasoning of the learned High Court Judge in the
present case and the reasoning appears to me to be perfectly sound. Where I,
respectfully, disagree with the learned High Court Judge is in his application
of this reasoning to the facts of the present case. The reasoning was developed
in an effort to strike a balance between the rights of the individual citizen
and the exigencies of the common good. But there is no such balance to be
struck in the present case for the simple reason that, under our law, an alien
has, generally speaking, no right to reside in Ireland. That is the principle
on which the 1935 Act rests. It is important to remember that we are here
dealing, not with the Rule, but with the exception.
85. That
is why the 1935 Act is entitled an Act
“For
the control of aliens”
The
Act accepts that a number of aliens may in fact be in Ireland and provides that
they are to be subject to the normal civil and criminal law as these affect
citizens. The Act protects diplomatic and consular officials and authorises the
Minister to make special provisions concerning the Masters of ships, the pilots
86. If
one is to glean the policy of the Act from its terms it would appear to be that
generally speaking aliens have no right to be in Ireland and may be excluded or
deported at any time unless the Minister sees some reason for allowing them to
remain.
87. Mr.
Hogan S.C. (on behalf of the Applicant) submits and, Mr. Finlay S.C., in large
measure, concedes that there are certain limits placed on the powers of the
Oireachtas and of the powers of the Minister which derive from the fact that
Ireland is a country governed by law. Thus the Oireachtas would not be
competent to delegate to the Minister power to amend the Aliens Act itself.
Likewise if the Oireachtas were to delegate to the Minister a discretion which
on its face appeared absolute the Minister could not use this discretion to
amend the Aliens Act itself. So also if an alien were to get involved in civil or
89. Later
in the same year Gannon, J. in
Osheku
v. Ireland
[1986]
IR 733
rejected
a similar challenge stating at page 746:-
91. In
the following year (1987) the issue of the constitutionality of the Aliens Act,
1935, came before me in the case of
Fajujonu
& Ors. v. The Minister for Justice and Ors
[1990] 2 IR 151
.
92. The
first and second plaintiffs in that case were a Nigerian and a Moroccan citizen
respectively, who had been married in London in 1981, and who, shortly
thereafter had come to live in Ireland and had remained in Ireland without
notifying the Minister for Justice of their presence. Shortly before the
institution of proceedings Mr. Fajujonu had been asked by the Minister for
93. Justice
to make arrangements to leave the State and it was this request, coupled with
the fear that deportation order would follow, which gave rise to the proceedings.
94. The
case was one of considerable hardship. At the date of the hearing before me Mr.
Fajujonu and his wife had been resident in the State for upwards of six years.
They had three young children all of whom had been born in Ireland. In 1983
they had been given a house by Dublin Corporation in Ballyfermot. They were
apparently popular with the local community. The Secretary of the local Tenants
Association, Mr. Larkin gave evidence on their behalf at the hearing before me.
Indeed it would appear that it was a request by the Committee of the
Ballyfermot Sports and Leisure Complex to employ Mr. Fajujonu which brought his
presence in the country formally to the attention of the Department of Justice.
96. However
I felt obliged to follow the decisions in
Osheku
v. Ireland
and
Pok
Sun Shun v. Ireland
with which I expressed myself to be in agreement.
97. When
the matter came on appeal before the Supreme Court Mr. and Mrs. Fajujonu had
been resident in the State for upwards of eight years. In the Supreme Court the
Appellants formally abandoned their attack on the constitutionality of Section
5
of
the Aliens Act, 1935 and sought instead guidance as to the way the Minister
should exercise his discretion under the Section having regard to the period of
time during which the parents had been resident within the State and having
regard to the fact that the children were Irish citizens. The Court accordingly
dismissed their appeal on the constitutionality of the Act but, in the peculiar
circumstances of the case, allowed them to make the alternative case concerning
the exercise of ministerial discretion. As Finlay, C.J. (with whom Griffin, J.,
Hederman, J. and McCarthy, J. agreed) put the matter at [1990] 2 IR 160, 162.
98. It
is quite clear from the passage quoted (and in particular from the last
paragraph) that Finlay, C.J. was satisfied that the Act was not inconsistent
with the Constitution but that the Minister, in exercising his discretion,
would have to give due and proper consideration to all the circumstances of
this case.
99. The
emphasis in the Judgment of Walsh, J. (with which Griffin, J. Hederman, J. and
McCarthy, J. also agreed) is slightly different. He warned, for instance that
the Minister could not give inconsistent reasons for a
100. Walsh,
J. however was also of the opinion that the Aliens Act was not inconsistent
with the Constitution. At page 166 of the Report he says:-
101. The
control of aliens, though vested principally in the Minister for Justice,
relates also to the foreign policy of the State and, in earlier times, was one
of the prerogative powers of the Crown. In earlier times prerogative powers
were used to authorise the settling in Ireland of Huguenot refugees from France
and Protestant refugees from the Palatinate. Many of the sovereign States of
Europe used such powers to entice to their countries workers with particular
skills such as workers skilled in making silk or glass. At the present time the
Government is considering the admission of refugees from Kosovo but the fact
that some aliens are admitted does not mean that those not admitted are
entitled to complain of discrimination. The reason is simple. They have no
right to be in Ireland and the mere fact of their exclusion does not therefore
constitute unlawful discrimination against them. The Minister may decide, in
the interest of the common good, to admit a particular alien or aliens with
particular qualifications such as doctors or computer experts. The Government
has, under Section 10 of the Act, given rights, on a reciprocal basis, to
British subjects and, at a later stage, to citizens of the Member States of the
European Union. But the general power to exclude aliens still remains. This is
legislation of a unique kind where the people who are the subject matter of the
legislation are not recognised as having any right
102. Whether
this system suits the needs of the modern world is another question. Already
the State has had to make an exception to it to maintain the common market in
labour between this State and the neighbouring island. Another major exception
was required on our entry to the European Economic Community (as it then was).
It may be that the increased movement of people in the modern world demands a
different system. But this is a matter for the Oireachtas not for this Court.
104. The
applicant in this case is a Romanian national who, before he left his native
country in 1994, was a professional footballer. Three days after his
105. Immediately
following his arrival in Ireland, he applied for asylum in the State under the
provisions of the Geneva Convention relating to the Status of Refugees. Under
those provisions, this State would be obliged to grant the applicant asylum if
he were a refugee within the meaning of the Convention, i.e. a person who has
left his native country because of a well founded fear of persecution for
reasons of race, religion, nationality, membership of a particular social group
or political opinion. That application was made to the first named Respondent
(hereafter “the Minister”), as was an application to remain in the
State based on humanitarian considerations. The office of the United Nations
High Commissioner for Refugees (hereafter “UNETCR”) have set out
certain principles and procedures to be applied by the contracting states in
dealing with applications under the Convention in a document known as
“the Von Arnim letter” which was in due course superseded by the
“Hope Hanlan letter”. It was not in dispute in this case that the
Minister, in accordance with normal procedures, consulted with UNHCR before
arriving at his decision.
106. That
decision was to refuse the applicant’s claim to be treated as a refugee
under the Convention. An appeal was brought from it in accordance with the
relevant procedure to the Interim Refuge Appeal Authority (the retired
President of the Circuit Court, Mr. Justice O’Malley): he recommended
that the
107. Minister’s
decision be affirmed and, accordingly, the Minister refused to alter his
original decision. On the 12th March 1998, the Minister also refused the
application for leave to remain on humanitarian grounds and the
applicant’s solicitor was informed that a deportation order had been made
pursuant to the Aliens Order 1946 (hereafter “the 1946 Order”). On
March 16th, 1998 the High Court gave leave to the applicant to apply for
judicial review in respect of these decisions and interim relief restraining
the deportation was also granted pending the outcome of the proceedings.
108. In
the proceedings, the applicant claims a range of reliefs, including orders of
certiorari
quashing
the various decisions to which I have referred on the grounds that the
procedures to which I have referred had not been followed, that, in particular,
the Von Arnim and Hope Hanlan principles had not been applied and that, in any
event, Article
13 (
1
) of the 1946 Order, under which the applicant was
purportedly being deported, was
ultra
vires
the
Aliens Act 1935 (hereafter “the 1935 Act”) under which it was
purportedly made. In addition, the applicant claimed a declaration that the
relevant provisions of the 1935 Act were inconsistent with the provisions of
the Constitution and, hence, had not survived the enactment of the Constitution.
109. A
Statement of Opposition having been filed on behalf of the Appellants, the
substantive case came on for hearing in the High Court before Geoghegan J. In a
reserved judgment, he dealt first with the grounds other than those relating
110. An
appeal has now been taken to this court from that finding and the applicant,
for his part, has cross appealed against the dismissal by the learned High
Court judge of his claim for other relief by way of judicial review in respect
of the decisions and order of the Minister.
111
. Although
one paragraph only of
s.5(
1
)
is
challenged in these proceedings, the entire subsection must be set out. It
provides that:-
112. Subsection
(2) empowers the Minister to include in an aliens order provisions for a number
of purposes which, in his opinion, may be necessary for giving full effect to
or securing compliance with the order. These extend to
113. Subsection
(4) provides that an aliens order is not to apply, in general, to members of
diplomatic or consular missions. Subsection
(5)
provides
that, subject to certain qualifications, an alien who has been ordinarily
resident in the State for not less than five years and is either employed or
engaged in a business or profession is not to be deported under an aliens order.
115. Section
10 of the Act should also be noted. It empowers the Executive Council (now the
Government) to exempt by order nationals of any specified country from the
provisions of the Act. It appears that the power has been exercised in respect
of one country only, the United Kingdom. Our accession to the ECC, as it then
was, in 1972 also led to the making of the European Communities (Aliens)
Regulations 1977 (SI No. 393 of 1977) which established a different regime for
aliens who were nationals of a member state.
116. In
purported exercise of the power conferred by the
1935
Act,
the Minister made the Aliens Order 1946 (SRO No.
395
of
1946) (hereafter “the 1946 Order”). Article
13 provides
inter
alia
as
follows:-
117. The
provisions of the
1935
Act
and the 1946 Order have been considered in a number of cases in the context of
the Constitution. In
Tang
v. Minister for Justice
High Court, unreported, Flood J, 11
October 1994, the High Court declared
Article
13(
1
) of the Aliens Order 1946 to be
ultra
vires
the
powers conferred on the Minister by the 1935 Act because the parent Act did not
expressly authorise the Minister to make a deportation order where he deemed it
“conducive to the public good”. That decision was reversed by this
court, which found the 1946 Order to be
intra
vires
the
powers conferred on the Minister by s.
1
1
of the 1935 Act (
Tang
v. Minister for Justice
[1996] 2 ILRM 46) In the course of his judgment in that case, Hamilton C.J.
cited with approval the following passage from the judgment of Gannon J. in
Osheku
v. Ireland
[1986]
IR 733, 746:-
118. In
the constitutionality of the 1935 Act was upheld, but it had not been
challenged on the ground advanced in this case. That decision was followed by
Barrington J as a High Court judge in
Fajujonu
v. Minister for Justice
[1990] 2 IR 151, but again the ground relied on by the plaintiff was not the same as
that advanced in the present case. The claim that the Act was unconstitutional
was abandoned in the Supreme Court.
119. A
similar view to that expressed by Gannon J. as to the inherent power of
sovereign states to exclude and deport aliens has been taken in at least two
120. It
should also be noted that, although it was made clear in
Oshekii
that the vindication of the rights of the State itself could have as its
consequence the restriction of the exercise of personal rights, circumstances
may also arise in which the exercise by the Minister of his powers, or at least
the manner in which they are exercised by him, must yield to the necessity to
protect such
122. Since
the challenge to the constitutionality of the
1935
Act
was not pursued in this court, that observation was clearly
obiter
but,
in any event, I do
123. The
increasing recourse to delegated legislation throughout this century in this
and the neighbouring jurisdictions has given rise to an understandable concern
that parliamentary democracy is being stealthily subverted and crucial decision
making powers vested in unelected officials.
124. The
exclusive law making role of the national parliament under the Constitution is
set out in emphatic language in Article
15.2.
1
:-
125. Historically,
this Article
can be seen as an uncompromising reassertion of the freedom from
legislative control by the Imperial Parliament at Westminster of the new State.
But it is also an essential component in the
126. The
reference to “the Government” in the last sentence might, I think,
more appropriately have been to “the Oireachtas”. Subject to that
qualification, that passage still clearly represents the law and has been
endorsed on more than one occasion by this court. In one such decision,
Cityview
Press & Anor. v. An Chomhairle Oiliúna & Ors.
[1980]
IR 381, O’Higgins C.J., speaking for the court, explained the criteria
for determining whether the delegation of powers is permissible in somewhat
more detail (at page 399):-
127. The
learned Chief Justice pointed out that the statute being considered in that
case contained a provision for the annulment of the regulations or orders
128. Whatever
else may be said of the legislation under consideration in the present case, it
can hardly be suggested, in the context with which we are concerned, that it is
in the slightest degree unclear or ambiguous. In the plainest of language it
empowers the Minister to exclude and deport, not merely particular aliens, but
whole categories of aliens determined by their nationality or
“class”. Yet, if Mr. Finlay’s submissions are well founded,
the Minister would be precluded from doing precisely what the Act says he can
do, assuming such a determination could be regarded as a “policy”
decision. There would, moreover, be little left of the decisions in
Pigs
Marketing Board v. Donnelly
and
Cityview
Press
on that view of the law, since it is difficult to imagine a case in which it
could not be said that the Minister would, in any
129. Since
a judgment I gave as a High Court judge (
Carrigaline
Company Limited v. Minister for Transport
[1997] 1
ILRM 241) was also relied on by Mr. Finlay, I should refer to the
passage in it from which he sought to draw support. That was a case concerned
inter
alia
with
the validity of regulations made under the Wireless and Telegraphy Act
1926-1988 in connection with the granting of licences. It was submitted that
s.5
of
the 1926 Act which conferred the licensing power was invalid having regard to
Article
15.2.
1
.
Having
referred to
Cityview
Press Limited
.
I went on (at page 289):-
130. The
importance of the principles set out in these authorities in a jurisdiction
with a written constitution founded on the separation of powers is confirmed by
the jurisprudence of the United States Supreme Court which is considered in
detail by Denham J in her judgment.
131. Since
it was not enacted by the Oireachtas, the 1935 Act does not enjoy the
presumption of constitutionality, although it was not, I think, seriously
disputed that the onus was on the applicant to demonstrate that the impugned
provision was inconsistent with Article
15.
1
. Moreover, as pointed out by the
High Court of Saorstát Éireann in
The
State (Kennedy) v. Little
[1931] IR 39 and O’Higgins C.J. in
Norris
v. Attorney General
[1984] IR 36
,
it is to be assumed, in the case of the transitory provisions of both
Constitutions, that it was intended that the existing body of law should be
carried forward with as little dislocation as possible.
132. I
am also prepared to assume, for the purposes of this case, that the power
vested in the Minister by
s.5(1
)(e)
will
be exercised by him in accordance with the Constitution and that he will, where
appropriate, apply fair procedures. While the presumption identified by Walsh
J. in the
East
Donegal
case
is no doubt a corollary of the presumption of constitutionality itself, which,
at least in the formal sense, does not arise in this case, the Minister, as a
member of the Government established under the Constitution, is an office
133. The
central issue in the case, however, is as to whether
s.5(l)(e)
of
the 1935 Act infringes Article
15.
1
because the principles and policies, if
any, which are to be given effect to by orders made by the Minister in exercise
of his powers under the provision are not set out in the statute itself.
134. In
considering that question, it is helpful to examine more closely the expression
“principles and policies”. The “policy” of a particular
legislative provision is presumably an objective of some sort which parliament
wishes to achieve by effecting an alteration in the law. To take a clear cut
example, the policy of legislation concerning rented property was initially to
prevent the exploitation of tenants by drastically abridging freedom of
contract. In more recent times, the Oireachtas took the view, prompted by the
courts (see
Blake
v. Attorney General.
[1982] IR 117) that the law was, in some areas at least, unduly weighted in
favour of the tenants. Accordingly, the pre-existing law was altered so as to
give effect to a different objective. However, as the use of the expression
“principles and policies” in the plural by O’Higgins C.J.
indicates and the example I have given illustrates, one can have different
135. In
the present case, accordingly, it is necessary to identify first the
alterations in the law, if any, effected by the relevant provisions and,
secondly, the objective which was intended to be thereby achieved.
136. In
considering what was the state of the law when the
1935
Act
was enacted, I shall leave out of account, for reasons which will become
apparent later, the legislation which was then in force and which was repealed
by the
1935
Act
itself. It is clear that, altogether apart from the provisions of the
1935
Act
and any preceding legislation, Saorstát Éireann as a sovereign
state enjoyed the power to expel or deport aliens from the State for the
reasons set out in the judgment of Gannon J. in
Osheku
v. Ireland
.
It is, of course, the case that in modern times, both here and in other common
law jurisdictions, the exercise of the power is regulated by statute, but that
does not affect the general principle that the right to expel or deport aliens
inheres in the State by virtue of its nature and not because it has been
conferred on particular organs of the State by statute.
137. An
explanation of the manner in which the principle was applicable in the case of
member states of the former British Commonwealth is to be found in the judgment
of Lord Atkinson giving the advice of the Judicial Committee
138. Article
51 of the Constitution of the Saorstát Éireann declared that the
executive authority of the State was to be vested in the King, but the wording
of the
Article
made it clear that, in effect, it was to be vested in the
Executive Council which was to “aid and advise” the Crown in its
exercise. In English constitutional theory, the executive power of the State,
to the extent that it was not expressly delegated by legislation to other
bodies, such as Ministers, was regarded as being vested in the Crown in the
form of the royal prerogative. It was accepted by counsel in the present case
that the power of the State to deport aliens independently of any statutory
power was part of the prerogative power. It is unnecessary, in the context of
the present case, to consider in any detail the vexed question as to the extent
to which, and the form in which, the royal prerogative survived the enactment
of the 1922 Constitution which was considered by this court in
Webb
v. Ireland
[1988] IR 353
and
Howard
v. Commissioners of Public Works
[1993]
ILRM 665
.
It
is sufficient to say that, in the light of the authorities to which I have
referred, it is clear that, at the time the 1935 Act was enacted, the power of
Saorstát Éireann to expel or deport aliens was, in the absence of
legislation, vested in the Crown acting on the advice of the Executive Council.
139. The
change, accordingly, effected in the law by s.5(1
)(e) was not the conferring on
the State of an absolute and unrestricted power to deport aliens: that power
was already vested in the State. But it was now to be exercised by
140. That
was certainly an alteration in the law; but to describe it as a
“policy” begs the question, since it assumes that such an
alteration can properly be so described. The
policy
of the legislation was not to enable the State to deport aliens at its
pleasure, subject only to whatever qualification, by legislation or otherwise,
it elected to impose on the exercise of the power: that power was already
vested in the State. The effect of the alteration was to enable the Minister,
and not the Oireachtas, to determine, not merely the aliens or classes of
aliens who should be deported, but also the modifications, if any, to which the
exercise of the power should be subjected. Undoubtedly, the designation of
categories of aliens as being either immune from, or subject to, deportation at
the discretion of the State and the delineation in legislative form of
141. The
situation in this case is in some ways analogous to that which arose in
McDaid v. Sheehy & Ors
.
The central role in the raising of revenue allotted to Dáil
Éireann under Article
17 of the Constitution had been effectively
delegated in that case to the Government and, as Blayney J. found, such a
delegation could not of itself be properly described as a “policy”.
It is difficult to see how the similar assignment in this case of the
State’s power to deport aliens to a minister could properly be regarded
as a “policy”.
142. It
is quite usual to find that the exercise of the rule making power is subject to
annulment by either House and I do not underestimate the value of such a
provision. However, even in the hands of a vigilant deputy or senator, it
143. It
cannot be too strongly emphasised that no issue arises in this case as to
whether the sovereign power of the State to deport aliens is executive or
legislative in its nature: it is clearly a power of an executive nature, since
it can be exercised by the executive even in the absence of legislation. But
that is not to say that its exercise cannot be controlled by legislation and
today is invariably so controlled: any other view would be inconsistent with
the exclusive law making power vested in the Oireachtas. The Oireachtas may
properly decide as a matter of policy to impose specific restrictions on the
manner in which the executive power in question is to be exercised: what they
cannot do, in my judgment, is to assign their policy making role to a specified
person or body, such as a Minister.
144. It
is instructive, in this context, to consider the manner in which the Minister
actually exercised his powers under
s.5
when
he came to make the 1946 Order. I have already cited in part Article
13 which
relates to deportation: its remaining provisions are purely regulatory or
administrative in nature.
145. However,
the provisions of Article
5(3)
provide
an interesting contrast. They are as follows:-
146. These
provisions, which were subsequently replaced by the Aliens Order,
1975,
were
clearly
intra
vires
the
wide-ranging powers given by s.5(1
) of the
1935
Act.
They also replicate to some extent provisions which were at one stage
applicable to Ireland when part of the United Kingdom but which were contained
in s.
1
of the Aliens Act
1905
and
not in any regulation or order made under that Act. Section 3 of the same Act
provided for the deportation of “undesirable aliens” but only in
specified circumstances, e.g. where an offence had been committed. The
restrictions on the deportation power were to be found, accordingly, in the Act
itself and not in delegated legislation.
147. It
is convenient at this
juncture
to continue the account of the pre-1935 legislation. On the 5th August 1914,
within hours of the beginning of the Great War, the Imperial Parliament at
Westminister enacted the Aliens Restrictions Act, 1914. It enabled the Crown to
make wide-ranging Orders in Council dealing with the admission and deportation
of aliens
148. While
the wording is somewhat different from Article
15.
1
,
it
would seem to follow inevitably that, if
s.5(
1
)(e)
was
inconsistent with the provisions of
Article
15.
1
,
of
the present Constitution, the corresponding provisions in the 1914 and 1919
Acts were similarly inconsistent with the provisions of
Article
12 of the
Constitution of the Irish Free State, which contained transitory provisions
similar to those contained in the present Constitution.
149. That,
however, is of academic interest only, as is the question as to whether the
1935 Act itself survived at least until the enactment of the present
Constitution. Pursuant to the provisions of Article
50
of
the 1922 Constitution, as interpreted by the courts, the Oireachtas were
entitled to amend the Constitution by ordinary legislation at the time the 1935
Act was enacted.
150. Southern
Ireland in
R.
(Cooney) v. Clinton
[1935] IR 245
(actually
decided in 1924) that the Constitution could be so amended, but that view
appeared to have been rejected by this court in
Conroy
v. Attorney General and Another
[1965] 41
1
where it was said at page 443 that
151. However,
in that case the court had already found that the corresponding provisions in
the Road Traffic Act 1961 were constitutional and, accordingly, it necessarily
followed that the 1933 Act was not in conflict with the provisions of the 1922
Constitution which were in similar terms to those under consideration in
Conroy’s
case. A more complete statement of the position is to be found in the judgment
of Ó Dálaigh C.J. in the subsequent case of
McMahon
v. Attorney General
[1972] IR 69 where he said (at page 10 1
):-
152. Since,
however, this particular issue was not fully argued in the present case and is
in any event unnecessary to its disposition, I would not, for myself, express
any concluded view as to whether, assuming its lack of conformity with the 1922
Constitution, the
1935
Act
should be held to have amended that instrument.
153. Accordingly,
one returns finally to the initial question, i.e. as to whether
s.5(1
)(e)
was
inconsistent with
Article
15(
1
)
of
the Constitution. I am satisfied that the power which it gave to the Minister
to determine the policies and principles by reference to which the power
already vested in the State to deport
154. The
relevant facts of this case have been fully set out in the Judgments just
delivered and it is unnecessary for me to repeat them here. I had an
opportunity of carefully reading and considering the Judgments in advance of
today’s sitting and I find myself in agreement with the Judgment of
Barrington, J. I’ll just add a few words of what I hope are practical
considerations.
155. The
State has virtually absolute power regarding the granting or withholding of the
right of aliens to come into and remain within the territory of the State.
Article
5
of
the Constitution and
Osheku
v. Ireland
[1986]
IR 733. The organ of Government to exercise this power on behalf of the State
is logically the executive organ (the Government). The legislative organ of
Government (the Oireachtas) can nominate a member or members of the executive
organ to exercise the power on behalf of the Government and the State. This the
Oireachtas has done by the Aliens Act,
1935
nominating
the Minister to fulfil that role.
156. It
could be advantageous to
“the
people of Éire”
as
referred to in the preamble to the Constitution to provide that only aliens of
a certain class could land in or enter into or remain in the State - for
example only persons who have the benefit of third level education and
possessed a degree from a reputable University. It could hardly be gain said
that such a regulation was seeking to
157. Conversely
it would not promote the common good of the people of Éire to admit into
the State aliens of dubious character likely to engage in telephone, credit
card, or computer frauds or any other criminal activity. That is obvious, but
one could also say that to admit aliens from a place of illiteracy and absence
of the skills required for modem industrial and commercial life would not
promote the common good of the Irish Nation either although pushed too far this
might conflict with the concept of charity and concord with other Nations also
referred to in the preamble to the Constitution. The circumstances of aliens
vary to such an extent depending on what part of the world they come from and
on the ethos of each succeeding generation that to be effective the powers of
control to be given to the executive by the Oireachtas must necessarily be very
wide and very widely defined. This is why the powers given to the Minister by
the Aliens Act, 1935 are so widely drawn. They confer on the Minister a very
wide ranging discretion in the exercise of the
158. State
and the Nation’s right to grant or refuse entry to the national
territory. Read in the light of the Constitution the Minister must exercise
these powers
bonafide
in
the interests of the common good of the people of Éire and of concord
with other Nations, a formula which allows for discrimination between aliens of
a particular nationality or otherwise of a particular class or of particular
aliens. See
Tang
v. The Minister for Justice
[1996]
2 ILRM 46. The Constitution would also of course require that the Minister
exercise his wide ranging powers in accordance with natural justice and fair
procedures.
159. By
making the Aliens Order, 1946 the Minister has not changed the law in any way.
He has merely applied the law arising from the sovereignty of the State and as
nominated so to do by the Aliens Act, 1935 to various aliens and categories of
aliens in the interests of the common good of the citizens of this State.