Michael McDowell (Dublin South East, Progressive Democrats)

As the Senator will probably be aware, the Supreme Court, in the matter of Article 26 of the Constitution and the provisions of sections 5 and 10 of the Illegal Immigrants Trafficking Bill 1999, has examined in great detail the provisions of section 5 of what is now the Illegal Immigrants Trafficking Act 2000. The court held that no provision of the section was repugnant to the Constitution. Section 5(2) provides that the 14 day limit may be extended whenever the High Court considers there is good and sufficient reason for doing so. In its decision under the Article 26 reference, the Supreme Court found that the State has legitimate interest in prescribing procedural rules calculated to ensure an early completion of judicial review proceedings of the administrative decision set out in section 5(1).

In exercising its discretion to choose an appropriate time period, the Legislature must not undermine any right guaranteed under the Constitution such as the right of access to the courts. The Supreme Court noted that the 14 day limit was not the shortest that the courts have had to deal with and was satisfied that the power of the courts to extend the time limit for good and sufficient reason is wide and ample enough to avoid an injustice.

The Law Reform Commission, in its recently published consultation paper on judicial review procedure, discussed the matter at length. The commission concluded that the 14 day limit "achieves the necessary balance between the rights of the applicant and the policy concerns of the legislature" and it recommended no change. I am satisfied, therefore, in view of the Supreme Court decision on the Article 26 reference and the experience of the day to day operation of section 5, that there is no requirement to amend the provision and it is working well. The commission's report confirms my view.

I do not see a value in the proposal that the jurisdiction of the Supreme Court should be invoked in matters of leave to appeal and that the competency in these matters should remain with the High Court. The entire point of these provisions is to ensure the judicial review process, which is fundamental to our system of justice and Constitution, cannot be abused to create unnecessary delays in the deportation process where there is no issue of substance that would warrant postponement of a person's departure from the State. It would be easy, if we acceded to these amendments, for those who wish to resist deportation from the State to create such a volume of case law for the courts that the administration of the burden on the courts and the State in attempting to deal with it would add a year to every procedure if these strict time limits were not in place.

The Article 26 reference arose from a decision of the President as a result of concerns expressed at the time that this provision might be dubious in terms of the Constitution and the matter was referred to the Supreme Court for its decision. When the court examined the matter, it stated there was a fair balance between the rights of the people to have a system that works and the rights of an individual who could be subject to an injustice if limits were put in place.