In an important judgment dealing with the law-making powers of the Oireachtas, the Supreme Court yesterday unanimously allowed the State's appeal against a High Court judgment, which had struck down Section 2 of the Immigration Act 1999 as unconstitutional.
The High Court decision last January had immediate implications for controlling the movements of non-nationals and led to the introduction of the controversial Immigration Act 2004, described as emergency legislation.
While upholding the High Court's finding that Article 5.6 of the 1946 Aliens Order (permitting an immigration officer to impose conditions on the duration of a non-national's stay in the State and their employment) was made in excess of the provisions of Section 5 of the Aliens Act 1935, the Supreme Court overturned yesterday the High Court's decision that Section 2 of the 1999 Act (introduced to make lawful the provisions in question) was unconstitutional. The Supreme Court ruled the section was constitutional.
Section 2 was enacted after the Supreme Court, in another case in 1999, found that provisions of the Aliens Act 1935 giving power to the Minister for Justice to make deportation orders was unconstitutional.
Intended to "save" other provisions of Section 5 of the 1935 Act, Section 2 stated that "every order made . . . under s5 (of the 1935 Act) shall have statutory effect as if it were an Act of the Oireachtas".
Last January 22nd, Ms Justice Finlay Geoghegan struck down Article 5.6 of the 1946 Order. She also found that Section 5.1.h of the 1935 Act, permitting the Minister for Justice to specify provisions with which non-nationals must comply regarding registration, change of abode, employment and "other like matters", was unconstitutional.
She further held that Section 2 of the 1999 Act was unconstitutional because it involved primary legislation being amended by secondary legislation.
In light of her findings, Ms Justice Finlay Geoghegan granted orders restraining the prosecution of a Chinese man, Mr Liu Chang, for failing to produce identification to a garda, and the prosecution of a Latvian woman, Ms Ilona Leontjava, who was charged with remaining within the State in contravention of the Aliens Order 1946, as provided for by Section 2 of the Immigration Act 1999.
The charges against Ms Leontjava were struck out on February 10th without prejudice to being reinstated depending on the outcome of the State's appeal to the Supreme Court against the High Court decision. (In light of its findings yesterday, the Supreme Court overturned the High Court orders which had restrained the prosecutions of both non-nationals.)
The Chief Justice, Mr Justice Keane, found yesterday that Ms Justice Finlay Geoghegan was correct in finding that Article 5.6 of the 1946 Aliens Order was made in excess of the powers of Section 5.1 of the Aliens Act.
While Section 5.1 allowed the Minister for Justice to place conditions on non-nationals "landing in or entering" the State, Article 5.6 went "considerably further". It dealt not just with entering the State but allowed the imposition of conditions requiring a non-national to leave after a specified time. There was no indication in Section 5.1.b of the Aliens Act that the Oireachtas intended the Minister to have such a power or permitting him to confer any such power on immigration officers.
He agreed with the High Court judge that Article 5.15 of the 1946 Aliens Order, requiring non-nationals to produce identification documents on demand, was made within the provisions of Section 5.1.h of the Aliens Act 1935.
However, he disagreed with the High Court judge's finding that Section 5.1.h itself was unconstitutional. The policy of the provision was plain, outlining the desirability of regulating registration, change of abode, employment and "other like matters" regarding non-nationals, he said.
It was entirely appropriate for the legislature to specify matters which they considered required regulation, while leaving it to the Minister for Justice to put in place specific regulatory provisions, Mr Justice Keane said. He found Section 5.1.h was constitutional.
On whether Section 2 of the 1999 Immigration Act was constitutional, Mr Justice Keane disagreed with the High Court judge's view that Section 2 was unconstitutional because it involved primary legislation being amended by secondary legislation and because its provisions were not set out in a Bill initiated and passed by both Houses of the Oireachtas, contained in a Bill signed by the President and promulgated as a law.
Mr Justice Keane said there was "a notable absence" in the Constitution of any detailed requirements as to the form which legislation is to take or the manner in which legislation is to be dealt with by either House of the Oireachtas.
He said one of the legislative techniques in existence in 1937 was the practice of the incorporation, by reference, of provisions in a statute. International conventions were normally incorporated by reference, he noted.
As there was no constitutional provision prohibiting the Oireachtas from enacting legislation in the form of Section 2, the onus was on the respondent non-nationals to establish it was unconstitutional.
The Constitution afforded "a strikingly wide latitude" to the Oireachtas in adopting whatever form of legislation it considered appropriate in particular cases, he said. Where, as here, it had expressed its clear and unequivocal intention that particular instruments should have the force of law in the State, it was difficult to see how it could be said to have exceeded or abused its exclusive legislative role.
The fact that the enactment incorporated by reference other legal instruments in accordance with well-established legislative procedures could not deprive Section 2 of the character of an Act passed by both Houses, signed by the President and duly promulgated and enrolled in accordance with the Constitution.
Mr Justice Keane said the Supreme Court could not accept the proposition that the framers of the Constitution, while conferring on the Oireachtas the exclusive role of making laws for the State, intended to limit those powers to legislate by prohibiting them from incorporating other instruments, such as secondary legislation and treaties, in an Act and giving them the force of law without setting out the provisions in full.
The other four Supreme Court judges - Mr Justice Murray, Ms Justice McGuinness, Mr Justice Fennelly and Mr Justice McCracken - agreed with Mr Justice Keane's decision. Mr Justice Fennelly and Mr Justice Murray dissented from the Chief Justice on one point only. Both judges said they believed Section 5.1 of the 1935 Act did permit the making of orders by the Minister for Justice regarding conditions on the length of stay here of non-nationals. However, they agreed with Mr Justice Keane that the Minister was not entitled to delegate that power to immigration officers.
