Thursday, 30 January 2003
Immigration Bill, 2002: Committee Stage (Resumed).
'10. (1) Where the Commissioner is for any reason temporarily unable to act as the Commissioner or the office of the Commissioner is vacant, the Minister shall appoint a person to be the Commissioner for the duration of the inability or until an appointment is made in accordance with paragraph 1, as the case, may be, and the person so appointed may perform all the functions conferred on the Commissioner by this. Act.
While I do not have a problem with the section or the amendment in general, I ask the Minister to accept the amendment to amendment No. 23, the purpose of which is to ensure the guidelines issued by the chairperson of the tribunal would be made public and that the Houses of the Oireachtas could address any problems which may arise.
I have substantially addressed the reasons for my opposition to the amendment to amendment No. 23. As I stated, the proposed paragraph 17 enables the chairperson to issue guidelines and guidance notes on aspects of the work of the tribunal. This will assist with the efficient functioning of the tribunal and will be an important aid to the work of the various members of the tribunal, practitioners representing asylum applicants and staff both of the tribunal and the Refugee Appeals Commissioner in enhancing the clarity and certainty of the appeals process on a procedural and functional level.
I am prepared to leave it to the discretion of the chairperson of the tribunal as to whether these guidelines should be widely available, for example, through a website. However, it is important to remember that they are guidelines, not legislative instruments, although they may assist in the application of the instruments and are likely to be issued or revised with some regularity. Moreover, they will reflect the chairperson's view as to how his or her office should operate under the Refugee Act or the law relating to refugees generally. Therefore, the Oireachtas should not need a role in overseeing or possibly annulling guidelines which the chairperson of an independent body sees fit to issue for the proper functioning of his or her office.
If the amendment to amendment No. 23 was accepted, the guidelines would be transformed from the status of simple guidelines to quasi-statutory instruments. Requiring the approval of the Houses of the Oireachtas would transform them from one category of instrument into another. It is better that they be left amendable and flexible because the whole purpose of this innovation is to introduce day-to-day consistency and enable the chairperson to deal very quickly with unforeseen difficulties or difficulties of interpretation of previous guidelines. We do not want to arrive at a position in which the Houses of the Oireachtas must be involved every time some question of doubt arises as to the intention of the chairperson or the collective view of the members of the tribunal expressed at one of its meetings.
'8. (1) If a member of the Tribunal dies, resigns, becomes disqualified or is removed from office, the Minister may appoint another person to be a member of the Tribunal to fill the casual vacancy so occasioned and the person appointed shall be appointed in the same manner of the Tribunal member who occasioned the vacancy.
(2) Where the chairperson is for any reason temporarily unable to act as the chairperson, or the office of the chairperson is vacant, the Minister shall appoint a person to be the chairperson for the duration of the inability or until an appointment is made under paragraph 2, as appropriate, and the person so appointed may perform all the functions conferred on the chairperson by this Act.
18. The chairperson may from time to time convene a meeting with a member or members of the Tribunal for the purpose of discussing matters relating to the discharge of the business of the Tribunal, including, in particular, such matters as the avoidance of undue divergences in the exercise by the members of their functions under section 16.
19. The chairperson shall, not later than 3 months after the end of each year, submit a report in writing to the Minister of his or her activities during that year and, not later than 1 month after such submission, the Minister shall cause a copy of the report to be laid before each House of the Oireachtas.
I move amendment No. 25:
In page 7, before section 6, to insert the following new section:
6.–The Illegal Immigrants (Trafficking) Act, 2000 is amended:
(a) in section 5(2)(a) by the deletion of '14' and the substitution of '35',
(b) in section 5(3)(a) by the insertion after the third and fourth references to 'the High Court' of 'or the Supreme Court'.".
The amendment proposes to substitute the period of 14 days within which applications must be made for a judicial review, which is too short, with a period of 35 days. The purpose of the second part of the amendment is to restore the right of leave to appeal refusal by the High Court. The reason we introduce this proposal is that a similar amendment tabled in 2000 was withdrawn by my colleague, Deputy Howlin, in the Dáil because an assurance was given that it was implicit that an applicant would have a right of leave to appeal a High Court decision. That has not been the case and we want to address that gap. I would like the Minister to comment on these amendments.
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.
The escape hatch is that this is not a rigid system that is immovable in any circumstance because the High Court makes the ultimate decision as to whether time will be extended. It was held, therefore, that that formula was fully constitutional. We have an independent Judiciary and it comprises the appropriate people to decide whether in exceptional cases there is a need to extend the ordinary system.
There has not been an injustice over the past year arising from the operation of this provision. On the contrary, it has concentrated people's minds. I do not suggest lawyers abuse the process, but they are tempted when their clients badly want to create space in terms of time to invoke the jurisdiction of the court. Under this provision, they are required to address the issue in clearer terms and outline their case in terms of whether it has a chance of succeeding and on what grounds it is based. If there are no clear grounds on which the decision they wish to impugn can be challenged, they must tell their client there are no such grounds and not waste the resources of the judicial system processing claims that are submitted primarily to avail of the time delay that follows from all court procedures.
If we want to preserve the integrity of the system, we must adhere to current procedures. If we amend the provisions in question, which have been adjudicated on under Article 26, one of the by-products would be that it would subsequently be subject to separate constitutional challenge because once an Article 26 decision has been made about a provision of an Act, it is thereafter immune from constitutional challenge. However, if the provision is amended, the doors would be open again to every lawyer to continue to attack its constitutionality in case after case without end in the courts on the basis that they think they can repeatedly reopen the issue.
If amendments were accepted they would give rise to constitutional challenges. Article 26 is a good procedure but, on the other hand, it is good for people to be able to test the constitutionality of legislation by applying it to real facts and events. Will the Minister consider the issue of providing for leave to appeal to the Supreme Court?
The Senator is asking me to provide for an automatic right of appeal to the Supreme Court against a High Court decision. The answer is no because that would transfer the problem for another few months from one court to another. Almost all the applicants are legally aided. It costs them nothing to take a case but it costs the State in terms of paying for the applicant's lawyers and its own. It would also cost the State, if I were to open the floodgates in this way, as the Supreme Court would be inundated with these cases, which would be brought solely for the purpose of creating delay without expense to the applicant. If such cases were taken in sufficient volume, the system would clog up and I will not go down that road.
Amendment, by leave, withdrawn.
Government amendment No. 26:
In page 7, before section 6, to insert the following new section:
6.–(1) The Minister may prescribe ports to be approved ports for non-nationals arriving in the State from places or specified places outside the State for the purposes of the Aliens Order, 1946 (S.R. & O., No. 395 of 1946) ("the Order").
(2) A reference in the Order to an approved port shall be construed as a reference to an approved port prescribed under the section.
(3) Article 6(2) of, and the First Schedule to, the Order are hereby revoked.".
This is a largely technical amendment. Its purpose is to restore to the Minister for Justice, Equality and Law Reform a power to prescribe the ports and airports at which non-nationals coming from a place outside the State can land. This is a matter of secondary legislation under the Aliens Act 1935 and worked effectively without controversy as part of the Aliens Order 1946, which was the major statutory instrument made under the 1935 Act.
It could be modified from time to time by the Minister making a simple amending statutory instrument to reflect shifts in traffic flow and new routes being established. However, section 2(1) of the Immigration Act 1999 gave the force of statue to the Aliens Order 1946. It was claimed in the wake of the Laurentiu decision that it was invalid to have something as extensive as the Aliens Order in the form of a mere statutory instrument amendable by me or my successors without reference to Parliament.
It was decided to give the Aliens Order, which was up to then only a statutory instrument, the effect of statute law in the recent legislation. Senators will recall that this was done to protect the order from challenge following the finding of the High Court in the Laurentiu case.
Currently I would have to introduce primary legislation if I wanted to designate any new port in the State as one where non-nationals may land in the State. Clearly this is not an efficient way to do business. For example, if the owners of Greenore port in County Louth were to establish a new ferry service the day after tomorrow, then to be consistent with the present situation the matter is solely capable of being dealt with by primary legislation. I would have to bring an amending Bill to the House if I wanted to designate Greenore as a place where persons coming into the State had to make an application to land in the State. That would clearly be impractical. What would happen if the Houses of the Oireachtas were not in session?
Without the flexibility to make suitable provisions by secondary legislation, which is always subject to review afterwards by the Oireachtas anyway, the potential delays in securing the passage of a Bill could create difficulties for port or airport authorities which would have to await the passage of such legislation before they could act legally to allow non-nationals to land in their ports. It is not a power that is used frequently but it is a power that is best dealt with by order rather than primary legislation. Therefore I urge Senators to accept this amendment.
I move amendment No. 27:
In page 7, before section 8, to insert the following new section:
8.–A restatement of the enactments relating to non-nationals, immigration and asylum as amended inter alia by this Act shall be prepared under the Statute Law (Restatement) Act, 2002, as soon as may be after the passing of this Act.".
The law on immigration and asylum goes back to 1935 and has been amended on a number of occasions. My colleagues and I feel it should be tidied up and I await the Minister's comments.
I agree with the spirit of this amendment but not with the amendment itself. The law relating to enactments dealing with non-nationals is capable of being restated under the Statute Law (Restatement) Act, which has recently come into operation. The effect of that Act is that where a particular statute has been amended or can be found in a number of places, from time to time the Attorney General can produce a single effectively consolidated and updated text for the guidance of the public and the use of practitioners. It is not simply to be used as a domestic document for guidance but a document which can be used in court. People can see the Attorney General's certificate on the front of it and then realise it is the law in an official form.
The unofficial restatement of the Refugee Act 1996 has been widely available from my Department's website for several years as the Department has been doing this work informally. It can be downloaded from the Department's website, which is a demonstration of my Department's commitment to the principles to which the Act now gives statutory effect and the Restatement Act. It also shows the spirit of Senator Tuffy's amendment has been anticipated by my Department in relation to the Refugee Act legislation.
I hope to have a similar version of the Immigration Act on the website today and once the amendments to the Bill become law the website will be updated again. If there are other areas, such as the aliens legislation which I referred to earlier, which I can neatly put into a restated form then I will do so. We will make that available to anyone who needs to find it as soon as we can.
However, it is not necessary to have a specific obligation cast on the Minister. The amendment does not specify who would have to do so but it would be the Attorney General or the Minister and it is not necessary to cast that duty on the State. That is because in this area we have anticipated the Restatement Act and the concerns the Senator has very properly raised about making the law available in an easy single text form. Therefore it is not necessary to accept this amendment and I oppose it.