Pat Rabbitte (Dublin South West, Labour)

——and that ought to be stated in this House. People concerned with policy will state that it was disgraceful and they do not defend it, but the Minister stood over it and one wonders what invigilation he brings to bear on those who make these decisions because that certainly conferred no credit on this country.

For much of the intervening period there has been confusion in the public mind between asylum seekers and those who should, more realistically, be described as economic migrants. The State has not had an immigration policy. It is of course true that some of those seeking asylum have no real prospect of being granted it but, so far, there has not been any other more appropriate system in place by which they could apply to live, and earn a living, here.

Any proposals of the Department of Justice, Equality and Law Reform for an immigration and residence Bill are therefore to be welcomed but it is important to bear in mind why legislation is so necessary. What is needed is a comprehensive package of legislation that is grounded on known and stated immigration policy, and organised within a structured framework. A purely enabling measure, that maintains a system of executive discretion and decision-making on a case-by-case basis is no improvement on the status quo.

The Labour Party rejects an approach that prefers a legislative framework designed to be capable of accommodating any conceivable immigration policy, from open doors to iron curtain, with room for all sorts of intermediate schemes based on skills, countries of origin or any other quota system.

The legislation must be drafted by reference to the policy and it follows that the policy must be decided first. To pass an Immigration Act and afterwards decide an immigration policy is like having the OPW design a public building without first knowing whether it should be a school, a prison or a hospital.

The Constitution also requires that all the various discretions inherent in a statutory framework, both the Act and the orders and other statutory instruments made under the Act, must be governed by statements of principle and policy that are to be found in the governing legislation. For too long, our law on non-nationals and their rights has amounted to a bare statement of the extent of ministerial powers and discretions over these "aliens", without any reference to purpose, principle or policy. That is what has made these laws so vulnerable to constitutional attack.

This Bill must be judged, therefore, by reference to the extent that it includes statements of policy that bring certainty to aspects of people's lives — where they can live, whether they can work, whether their families can live with them — where certainty is a basic entitlement, and by reference to whether a clear, coherent and ascertainable policy is reflected in the body of the statutory provisions. Judged against these criteria, the Bill is severely wanting.

It must be remembered that the main constitutional challenge to the Aliens Act 1935 arose from the fact that it was a short emergency Act that simply delegated to the Government the power to make rules. The courts have long held that the Dáil and Seanad cannot simply wash their hands of the duty to make laws and subcontract the power to Ministers. There has to be a framework of policy and principle set out in an Act of the Oireachtas, under which Ministers, gardaí and immigration officers then operate. What we were expecting from then Minister, Michael McDowell, therefore, was a comprehensive immigration code, setting out the rights, obligations and responsibilities of all concerned. What we got instead was a step back to 1935, back to a time when law was for the Government to decide and the Oireachtas was expected simply to sit back and watch.

The then Minister, Michael McDowell, had insisted — he set out his argument in the body of the Bill itself, without precedent — that framing an immigration policy is exclusively and inherently a function of the Government, and not of the Oireachtas. The then Minister went further when he insisted that not only could he make up the law as he went along without reference to the Oireachtas, but that this law should bind everyone else in the country but not himself. He wanted to exempt the Minister personally from any objection to comply with his own policy statements. His Bill was an attempt to create a system of completely unfettered and potentially quite arbitrary discretion and decision making on a case-by-case basis. We have a right to expect that the law should bring fairness and certainty to aspects of people's lives.

Presumably the present Minister, Deputy Brian Lenihan, has dropped some of the more objectionable characteristics of his predecessor's legislation because he regarded them as constitutionally untenable. Although this Minister no longer makes in the Bill itself the extraordinary claim that the framing of immigration policy is an Executive rather than a legislative function, he has not adapted the rest of the Bill he inherited to take account of the fact that this assertion has been dropped. The Minister, in fact, repeats his predecessor's assertion in the explanatory memorandum rather than in the Bill itself. This is more astute, but is it different? The explanatory memorandum states:

The executive power and responsibility of the Government to make immigration policies as they consider suitable to the conditions of the day is at present supplemented by a variety of statutory provisions designed to facilitate the implementation of those policies.

In other words, the Minister is repeating the claim that it is entirely an Executive function to make immigration policy and that the only function of the Oireachtas is to confer the powers that will facilitate the implementation of these policies.

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