Fall-out from judgment may have much wider implications

"The Aliens Act has literally imploded" was the comment of one legal expert on the Supreme Court's judgment

"The Aliens Act has literally imploded" was the comment of one legal expert on the Supreme Court's judgment. "There is no bolthole left from this judgment. It has the imprimatur of the Supreme Court now."

Although the Minister for Justice had introduced the Immigration Bill when the High Court ruled against the Act, and this has reached the committee stage, he would not have had to proceed with it if he had won yesterday's appeal.

This Bill sets out the basis for deportations and requires a number of issues to be taken into consideration before an order is made, including humanitarian ones.

Under the 1935 Act, the Minister had discretion in relation to deportations, without reference to any principles and policy. It was this power which the two higher courts found unconstitutional.

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All deportation orders signed under the Act, which must amount to hundreds, will now have to be torn up, according to this expert, and the officials will have to start from scratch under the new legislation when it is enacted.

They will have to take into account not only humanitarian considerations, but also the length of time the applicant will have spent in the State and other facts which will have been created since the original decision.

But this may not be the end of the fall-out from this judgment. The Aliens Act is not the only Act which might be vulnerable to this kind of constitutional challenge.

"There are dozens if not more items littered throughout the legislation, especially that passed in the early days of the State, where ministers are given all sorts of powers which are not defined", according to this lawyer. "Later legislation tends to be more carefully drafted."

The judgment has wider implications still, according to a constitutional expert, who drew attention to a sentence in the judgment of Mr Justice Keane. "This is the most important sentence in the whole judgment", he said.

Mr Justice Keane, who favoured the appeal, nonetheless stated: "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."

He went on to quote the article of the Constitution, stressing that the sole and exclusive power of making laws was vested in the Oireachtas.

Mrs Justice Denham said: "The legislature grasped the power over aliens from the executive and then delegated inadequately to the Minister [for Justice]. It abdicated its power. 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."

A lawyer said: "That is the biggest shift we've had in power towards the legislature. It's the stopping of the centralisation of power into the executive. It's a great day for parliamentary democracy."