Pat Rabbitte (Dublin South West, Labour)

The test is whether what is challenged as an unauthorised delegation of law-making power is more than a mere giving effect to principle and policies contained in the statute. If principle and policies are laid down in the statute and details are only filled in or completed by the designated Minister or subordinate body, then there is no unauthorised delegation of legislative power.

This Bill, like the one produced by the former Minister for Justice, Equality and Law Reform, Michael McDowell, appears to be drafted on an assumption that this rule does not apply in the area of immigration. Ministerial thinking appears to proceed along the following lines. First, the courts have said that the State must have wide powers in the interests of the common good to control non-nationals, their entry into the State, their departure and their activities within the State. Second, this must mean that it is the function of the Legislature merely to supplement the Government's Executive responsibility for making policies to manage migration to the State within a statutory framework to facilitate the promulgation of the Government's immigration policies and their day-to-day implementation without fettering or supplanting that Executive responsibility. Third, the normal rules of constitutional law, which require the Oireachtas to set out in primary legislation the statements of principle and policy by which a Minister is bound when he or she makes statutory instruments, has no application in the field of immigration. This line of thinking appears to me to be based on a failure to read or a deliberate misreading of the relevant Supreme Court judgments.

Mr. Justice Keane and Mrs. Justice Denham addressed the issue in the Laurentiu case in 1999, a case which resulted in the effective provisions of the Aliens Act 1935 being struck down as unconstitutional. Mr. Justice Keane made his position clear when he stated:

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.

This appears to me to be patently clear. Mr. Justice Keane accepted that:

altogether apart from the provisions of the 1935 Act and any preceding legislation, the State as a sovereign state enjoyed the power to expel or deport aliens from the State: 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.

He went on to point out that the effect of legislation in the area was not to confer on the State an absolute and unrestricted power to deport aliens — this power was already vested in the State — but to permit the Minister by regulation to decide what class of aliens might be deported. He also stated: "The Oireachtas had, in effect, determined that policy in this area should be the responsibility of the Minister." As Mr. Justice Geoghegan more succinctly put it: "The Oireachtas of Saorstát Éireann did not legislate for deportation; it merely permitted the Minister for Justice to legislate for deportation."

Mrs. Justice Denham stated: "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." She pointed out that if there had been no legislation, the situation would have a parallel to that of the issue of passports prior to the passing last year of the Passports Act. She stated:

That also is a classic example of an exercise of an 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.

Even in the field of immigration, these cases make it clear that there are limits to permissible delegation of law-making power by the Oireachtas to the Government; the Oireachtas may not abdicate its power to legislate. As Mrs. Justice Denham put it: "In accordance with the democratic basis of the Constitution, it is the people's representatives who make the law, who determine the principles and policies."

Finally, it is worth quoting a passage from the judgment of the then Chief Justice Keane in the Osayande and Lobe cases:

Many would wish to see the development in Ireland of a tolerant and pluralist society, capable of accommodating immigrants from diverse ethnic and cultural backgrounds, because that is a desirable objective in itself, recognises the openness and generosity with which Irish emigrants in times past were received in other countries and, on a purely economic level, remedies serious shortages in the skilled and unskilled labour market. At the same time, the legislature and executive cannot be expected to disregard the problems which an increased volume of immigration inevitably creates, because of the strains it places on the infrastructure of social services and, human nature being what it is, the difficulty of integrating people from very different ethnic and cultural backgrounds into the fabric of Irish society. The resolution of these complex political, social and economic issues which, it need hardly be said, are not in any sense unique to Ireland, is entirely a matter for the Oireachtas and the executive. The function of the courts is to ensure that the constitutional and legal rights of all the persons affected by the legislation in question are protected and vindicated.

There is nothing in any of these cases to give rise to the argument made by the Minister in his explanatory memorandum that it is an Executive function to make immigration policy and that the Oireachtas is confined to the supplementary role of passing legislation designed simply and solely to facilitate the implementation of Government policy.

These regulations are intended to provide for a wide range of actions as listed in my speech. One does not need to be a lawyer to spot the basic point that apart from giving the Minister power to legislate on all these matters, this Bill is entirely silent on the nature and content of that delegated legislation. For example, does Irish immigration policy favour family re-unification? The answer is that we do not know and we will not find out until the Minister makes regulations in this regard.

Enabling a Minister to make regulations to deal with an issue is not the same as making a statement of principle and policy about that issue. For want of any statement of policy on these issues, section 127 of this Bill, which purports to give the Minister power to make laws about all of them, falls into the same error that resulted in the successful challenge to, and striking down of, the Aliens Act 1935.

Given the scale and significance of this Bill, I hope the Minister will not use the paucity of legislation from other Departments to rush Committee Stage. We need time to take submissions from interested parties and the Joint Committee on Justice, Equality, Defence and Women's Rights will want to hear from many of the NGOs involved. There are many matters of significant detail that cannot be dealt with here. However, a major feature of the Bill is that it gets rid of the deportation notice procedure. If this Bill is passed unamended, in future, there will be two categories of non-national in the State — those lawfully present here and those whose presence is unlawful.

The entry and presence of a non-national will be lawful only if it is in accordance with ministerial permission. A non-national who does not have ministerial permission is present in the State unlawfully and may, without further ado, be removed from the State. There is no need for any intermediate administrative or judicial process. I do not understand how the Minister proposes to square this new arrangement with what he knows about the constitutional law of this State.

The Minister will remember that, until 1964, extradition between Britain and Ireland was done under legislation dating back to 1851. That legislation, the Petty Sessions (Ireland) Act, authorised a system where gardaí endorsed for execution in this State arrest warrants issued by their counterparts in Britain. They then arrested wanted persons and delivered them out of the State without any form of judicial oversight or intervention. The 1964 case of The State (Quinn) v. Ryan brought that process to an end. In that case, after an initial error, a man was arrested under a flawless English warrant that had been endorsed in Dublin for execution in this State and he was rushed over the Border into Northern Ireland before he had an opportunity to consider his position, consult legal advisers or make an application to the High Court. Nothing the gardaí did in that case was forbidden by the legislation under which they were operating. However, the Supreme Court, reversing three of its previous judgments, held that because the legislation envisaged a procedure whereby an individual could be bundled out of the State without time for legal intervention, the Act was unconstitutional and must be struck down.

See this speech in context