Supreme Court dismisses claim that s.2 Immigration Act 1999 is invalid for incorporating secondary legislation by reference.

THE SUPREME COURT

Keane C.J.

Murray J.

McGuinness J.

Fennelly J.

McCracken J.

39 & 53/04

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL

APPELLANTS

AND

ILONA LEONTJAVA

RESPONDENT

AND

DISTRICT JUDGE MARY COLLINS AND DISTRICT JUDGE BROPHY

NOTICE PARTIES

JUDGMENT of the Court delivered pursuant to Article 34.4.5º of the Constitution on the 23rd day of June, 2004, by Keane

C.J.

Introduction

This is the judgment of the court on the claim by the respondent that s. 2 of the Immigration Act, 1999 (hereafter “the 1999 Act”) is

invalid having regard to the provisions of the Constitution. The factual background to the proceedings is fully set out in the judgments

already delivered on the other issues arising in the proceedings.

As already noted, the provision in question was enacted following the decision of the majority of this court in Laurentiu –v- Minister

for Justice [1999] 4 IR 26 that s. 5(1)(e) of the Aliens Act, 1935 (hereafter “the 1935 Act”) was inconsistent with Article 15.2.1º of

the Constitution and had not survived its enactment. It provides that

“(1) Every order made before the passing of this Act under s. 5 of [the 1935 Act] other than the orders or provisions of orders

specified in the Schedule to this Act shall have statutory effect as if it were an Act of the Oireachtas.

(2) If sub-section (1) would, but for this sub-section, conflict with the constitutional right of any person, the operation of that

sub-section shall be subject to such limitation as is necessary to secure that it does not so conflict but shall be otherwise of

full force and effect.”

The Schedule is in the following terms:

“SCHEDULE

Article 13 of the Aliens Order, 1946 (S.R. & O., No. 395 of 1946).

Aliens (Visas) Order, 1999 (S.I. No. 25 of 1999).”

In her judgment, the learned trial judge, having noted that the provision benefits from the presumption of constitutionality, identified

the primary challenge on behalf of the respondent to it as follows:

“… it purports to give to the substantive provisions of the Aliens Order, 1946 (other than Article 13) legal status as if in an Act

of the Oireachtas without such provisions being contained in a Bill initiated and passed or deemed to have been passed by both

Houses of the Oireachtas in accordance with Article 20 and without being contained in a Bill signed by the President,

promulgated as a law, the text of which is enrolled in the Supreme Court in accordance with Article 25 and without such

provisions having been capable of being referred by the President to the Supreme Court in accordance with Article 26.”

She went on to refer to authorities relied on on behalf of the Attorney General, i.e. McDaid –v- Judge Sheehy [1991] 1 IR 1 and an

ex-tempore judgment by Abbott J. in the High Court in H.K. –v- Garda Commission & Ors (unreported; judgment delivered 27th March,

2003). She considered the former decision as distinguishable on two grounds, i.e. that no issue arose as to the constitutionality of

the provision under challenge in that case and that, in any event, the arguments addressed to the High Court and in this court in the

instant case were not addressed to either court in that case. As to the second authority, the trial judge said that she took a

different view from that adopted by Abbott J. in that case.

The trial judge went on to find that, while the sole and exclusive power of making laws for the State was vested in the Oireachtas by

Article 15.2, this was a power which was “procedurally constrained” and could only be exercised by the enactment by the Oireachtas

of an Act, initiated as a Bill, which was then passed or deemed to be passed by both Houses and signed by the President and

promulgated as a law. She said that this conclusion followed from the provisions of Article 15.2, Article 20 and Articles 25.1, 25.4.1º,

25.4.2º, 25.4.3º and 25.4.5º.

The trial judge said that there did not appear to her to be anything in the Constitution which authorised or permitted the Oireachtas

to determine that a provision which was and continued to be secondary legislation made by a person other than the Oireachtas

should thenceforth be treated in the legal order of the State as if it were an Act of the Oireachtas. She was of the view that the only

provisions which could be treated as a “law” within the meaning of Article 15 and have the legal status attributable to such a law

were laws consisting of provisions contained in a Bill passed or deemed to be passed by both Houses, signed by the President and

promulgated as a law. She was also of the view that the nature of this constitutional scheme was further confirmed by the reference

procedure provided for in Article 26.1.1º, since the Aliens Order, 1946 not being a “specified provision” of the Bill when it was passed

by both Houses of the Oireachtas could not be regarded as a “specific provision” within the meaning of Article 26.1.1º of the

Constitution and, accordingly, could not be referred by the President to this court for an opinion as to its constitutionality.

The trial judge, accordingly, concluded that s. 2 of the 1999 Act was invalid having regard to the provisions of the Constitution. From

that decision, the appellants have now appealed to this court.

Submissions of the parties

On behalf of the appellants, Mr. Paul Gallagher S.C. submitted that, since the Oireachtas had the sole and exclusive law-making power

in the State pursuant to Article 15.2.1º of the Constitution, it followed that it had power to provide by legislation that any provision

of the common law or of a statutory instrument should have the force of statute. That was, he said, the exercise by the Oireachtas

of a decision with regard to what would or would not constitute law or have the force of law within the State: it was the 1999 Act

which gave the relevant orders the force of statute.

Mr. Gallagher further submitted that the conclusions of the trial judge failed to take account of the constitutionally mandated

separation of powers between the legislature, the executive and the courts. There was no express prohibition in any of the

constitutional provisions referred to by the trial judge which prevented the enactment of legislation of this nature and any implied

prohibition would be inconsistent with the express terms of Article 15.2.1º.

Mr. Gallagher further submitted that the form or style of any legislation was exclusively a matter for the Oireachtas, while the validity

of any such law was a matter for the High Court and, on appeal, the Supreme Court. The form which legislation took was peculiarly a

matter for decision by the Oireachtas which, if dissatisfied with any aspect of a Bill initiated in either House, could amend or reject

the Bill.

It was not surprising that the Constitution did not spell out in detail the form which legislation might take, since that would be

inappropriate in a document such as a written constitution: he cited in support the observations of Marshall C.J. in McCulloch –v-

Maryland (17 U.S. 316) (1819).

Mr. Gallagher said that the 1999 Act followed in its entirety the procedure prescribed by the Constitution for the passing of a Bill by

both Houses of the Oireachtas, its signature by the President and its promulgation by her as a law.

In support of his submissions as to the significance in our law of the separation of powers enjoined by the Constitution, Mr. Gallagher

referred to the decisions of this court in Boland –v- An Taoiseach [1974] IR 338, Attorney General –v- Hamilton (No. 1) [1993] 2 IR

250, Sinnott –v- Minister for Education [2001] 2 IR 545 and T.D. –v- Minister for Education [2001] 4 IR 259.

Mr. Gallagher further submitted that the trial judge appeared to have proceeded on the erroneous assumption that the Oireachtas had

allowed a subordinate body, i.e. the Minister for Justice, to usurp its law-making role and that the Oireachtas was unaware of, or did

not engage in a proper review of, the orders to which it gave legislative approval. He submitted that there was no warrant for the

assumption that the Oireachtas had merely “rubberstamped” the legislation of a subordinate body, citing in this context the decision

of this court in McDaid –v- Judge Sheehy that the Oireachtas was entitled to give statutory effect to a number of orders specified in

the Schedule which were not set out in the Act itself.

Mr. Gallagher further submitted that the trial judge was in error in treating a “law” within the meaning of the relevant provisions of the

Constitution as being a Bill passed or deemed to have been passed by both Houses and signed by the President. He said it was clear

that statutory instruments validly made subsequent to the enactment of the Constitution constituted a “law” for the purposes of

Article 15.4 of the Constitution, citing the decision of this court in The State (Gilliand) –v- Governor of Mountjoy Prison [1987] IR

2001.

Mr. Gallagher further submitted that, while this was certainly an instance of “legislation by reference”, that was a perfectly normal

and accepted method of legislation, of which many examples were to be found, including, in particular, statutes giving effect in

domestic law to international conventions, the text of which was sometimes, but not always, set out in a schedule to the Act. In

some cases, he pointed out, it was made clear by the enactment that the text of the Convention was merely set out “for

convenience of reference” in a schedule.

Mr. Gallagher further submitted that the power of the President to refer a specified provision of a bill was left unaffected by the form

that this legislation took: there was nothing whatever to prevent the President from referring s. 2(1) of the 1999 Bill to this court as

“a specified provision” of the Bill, if she was of the opinion that any one or more of the orders thereby given statutory force were

invalid having regard to the provisions of the Constitution.

On behalf of the respondent, Mr. Gerard Hogan S.C. submitted that a number of consequences would follow, if the submissions

advanced on behalf of the Appellants were correct, which could not be reconciled with the procedures established under the

Constitution for the enactment of legislation by the Oireachtas. The statutory instrument to which validity would be given would be

no longer dependant on a parent act for its status and could not be challenged on grounds such as ultra vires. Nor could it be

invalidated on the ground that it was an unreasonable exercise of a statutory discretion on the part of the Minister who promulgated

it, as had happened in Cassidy –v- Minister for Industry & Commerce [1978] IR 297 and Doyle –v- An Taoiseach [1986] ILRM 693.

Moreover, the 1946 Order would now enjoy the presumption of constitutionality based on the respect which one great organ of

government owes to another organ, although the rational basis for this presumption, i.e. the progress of the enactment in the

ordinary way through both Houses of the Oireachtas, did not exist. Nor would the customary annulment powers conferred on the

Oireachtas in respect of statutory instruments be available in the case of the 1999 Act. The giving of statutory force to the 1946

Order, if valid, would also have the effect of impliedly repealing s. 5(7) of the 1935 Act entitling the Minister to revoke or amend an

Aliens Order.

Mr. Hogan submitted that all these consequences were entirely at odds with the framework for the enactment of legislation ordained

by the Constitution and which necessitated the due consideration by the Houses of the Oireachtas of draft legislation before it

became law.

Mr. Hogan further submitted that The State (Gilliand) –v- Governor of Mountjoy Prison relied on by the Appellant was solely concerned

with the interpretation of the word “law” as it appeared in Article 40.4.3º and Article 34.4.5º and that it had nothing to say to the

contention advanced on behalf of the Appellant in this case that the legislative function of the Oireachtas could be carried out in the

mode adopted in s. 2 of the 1999 Act.

Mr. Hogan further submitted that the Appellant’s argument did not derive any support from legislation which gave effect in domestic

law to international conventions. They were in an entirely different category from subordinate legislation such as the 1946 Order and

had been the subject of a specific international machinery before attaining the status of a convention.

Mr. Hogan urged that, while it was accepted on behalf of the respondent that the President could have referred s. 2(1) of the

Immigration Bill, 1999 to the court pursuant to Article 26.1.1º, it was also the case that the Aliens Order, 1946 could not have been

referred to the Supreme Court by the President at the date when that Bill was presented to her for her signature. It followed, he said,

that s. 2(1) was unconstitutional to the extent that it empowered the Oireachtas to give a statutory instrument the same effect as

an act of the Oireachtas, even though it could not have been referred by the President under Article 26. That was clearly to

circumvent the safeguards contained in the Article 26 procedure. He further submitted that the Aliens Order, 1946, could not have

been the subject of an Article 26 reference by the President, since it was not a “provision” of such a Bill.

Mr. Hogan further submitted that the fact that there was no express prohibition in the Constitution of legislation of this nature was

immaterial. The same could be said of the absence of an express prohibition of the enactment of laws interfering with pending

litigation, the extension of the voting franchise for Dáil elections or the disclosure in all circumstances of cabinet discussions, although

in each instance – Buckley –v- Attorney General [1950] IR 67, Re. Article 26 of the Electoral (Amendment) Bill, 1983 [1984] IR 268

and Attorney General –v- Hamilton (No. 1) [1992] 2 IR 250 - this court found that there was an implied prohibition derived from the

structure and language of the Constitution. If the approach urged on behalf of the appellants were to be adopted, it might be said

that the mere fact that the Constitution did not prohibit the President from exercising a form of veto over legislation was a ground for

supposing such a power to exist. Similarly, the absence of a prohibition might, on that view, mean that there was nothing to prevent

legislation taking the form of a resolution of one House. The fact that Marshall C.J. in McCulloch –v- Maryland outlined the necessarily

general and non-specific nature of a Constitution merely lent weight to the proposition that there were many matters prohibited by

implication by the Constitution rather than supporting the arguments on behalf of the appellants.

The applicable law

Two principles relevant to the determination of the issue arising on this appeal have been clearly laid down in a number of decisions of

this court. First, when the court has to consider the constitutionality of an Act passed by the Oireachtas, it must be presumed to be

constitutional unless and until the contrary is clearly established. Secondly, where, in respect of the provision in question, two or

more constructions are reasonably open, one of which is constitutional and the others are unconstitutional, it must be presumed that

the Oireachtas intended only the constitutional construction. It is only when there is no construction reasonably open which is not

repugnant to the Constitution that the provision should be held to be constitutionally invalid.

Article 15.2.1º of the Constitution provides that

“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority

has power to make laws for the State.”

Article 20 provides inter alia that

“1. Every Bill initiated and passed by Dáil Éireann shall be sent to Seanad Éireann and may, unless it be a Money Bill, be

amended in Seanad Éireann and Dáil Éireann shall consider any such amendment. …

3. A Bill passed by either House and accepted by the other house shall be deemed to have been passed by both Houses.

Article 25 provides inter alia that

“1. As soon as any Bill, other than a Bill expressed to be a Bill containing a proposal for the amendment of this Constitution,

shall have been passed or deemed to have been passed by both houses of the Oireachtas, the Taoiseach shall present it to

the President for his signature and for promulgation by him as a law in accordance with the provisions of this Article …

4.1º Every Bill shall become and be law as and from the day on which it is signed by the President under this Constitution and

shall, unless the contrary intention appears, come into operation on that day.

2º. Every Bill signed by the President under this Constitution shall be promulgated by him as a law by the publication by his

direction of a notice in the Iris Oifigiuil stating that the Bill has become law …

3º. Every Bill shall be signed by the President in the text in which it was passed or deemed to have been passed by both

Houses of the Oireachtas …

5º. As soon as may be after the signature and promulgation of a Bill as a law, the text of such law which was signed by the

President or, where the President has signed the text of such law in each of the official languages, both the signed texts shall

be enrolled for record in the office of the Registrar of the Supreme Court and the text, or both the texts, so enrolled shall be

conclusive evidence of the provisions of such law.”

While Article 11.1 provides that all questions in each House are, save as otherwise provided by the Constitution, to be determined by

a majority of the votes of the members present and voting other than the Chairman, there is a notable absence 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. Subject

to the overriding prohibition on the enactment of unconstitutional legislation contained in Article 15.4, it was clearly envisaged that

the Oireachtas were to be their own masters so far as both the substance and form of the legislation were concerned. This approach

is also reflected in Article 15.10 providing that

“Each House shall make its own rules and standing orders, with power to attach penalties for their infringement …”

This is also in accord with the celebrated characterisation of the nature of a written constitution in the judgment of Marshall C.J. in

McCulloch –v- Maryland:

“A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means

by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced

by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great

outline should be marked, its important objects designated and minor ingredients which compose those objects be deduced

from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not

only to be inferred from the nature of the instrument but from the language …In considering this question, then, we must

never forget that it is a Constitution we are expounding.”

This passage has been expressly approved of by this court: see the judgment of O’Flaherty J. in Riordan –v- An Tanaiste [1997] 3 I.R.

502 at p. 508.

Thus, none of the details of the legislative process in each house – the first and second reading, the committee stage and the report

stage – achieve even a mention. The role of political parties and of the leader of the opposition, the committee system and the

distinctions between public and private bills, government bills and bills initiated by deputies or senators, are nowhere mentioned. It

was obviously envisaged by the framers of the Constitution that, as in 1922, all these matters could be left to be determined by the

Oireachtas.

One of the legislative techniques which was in existence in 1937 was the practice of incorporation of provisions in a statute by

reference. While, according to the fourth edition of Bennion on Statutory Interpretation, at p. 648, the incorporation by reference of

earlier statutory provisions has attracted much judicial criticism and is less used in the United Kingdom today, its constitutional

validity in this jurisdiction has never been questioned. The learned author also refers (at p. 649) to another form of incorporation by

reference as follows:

“An enactment sometimes incorporates into the Act a whole body of law as it existed at a given time (‘the relevant date’).

This may include the practice prevailing on the relevant date, as well as the substantive law in force at that time … The

technique is called archival drafting because it requires persons applying the Act after a considerable period has elapsed since

the relevant date to engage in historical research in order to find out what the law thus imported amounts to”.

The practice of incorporation by reference is not peculiar to the United Kingdom or this jurisdiction. In the Canadian decision of R. –v-

Sims and Others (2000 B.C.C.A., 437), the Court of Appeal for British Colombia said:

“In legislative drafting, incorporation by reference to an external source is a well recognised, although sometime criticised,

device … Material other than statutes may also be incorporated by reference.”

The practice of incorporation by reference has also been adopted in the case of international conventions. An example to which the

court was referred was the Jurisdiction of Courts (Maritime Conventions) Act, 1989, s. 4 of which provides that

“(1) Subject to the provisions of this part, the Convention shall have the force of law in the State and judicial notice shall be

taken of it.

(2) The text of the convention in the English language is set out for convenience of reference in the First Schedule to this

Act.”

Other examples cited in the course of the arguments were the International Carriage of Goods by Road Act, 1990, the Arbitration

(International Commercial) Act, 1998 and the Contractual Obligations (Applicable Law) Act, 1991.

Other than in the unreported and ex tempore High Court decision already referred to in which a challenge to the constitutional validity

of the provision now under consideration was rejected by Abbott J. the practice of giving statutory force to statutory instruments

adopted in this case does not appear to have been the subject of any consideration in any decision. A not dissimilar procedure – of

confirming by statute the validity of delegated legislation – came before the High Court, and this court, however, in McDaid –v-

Sheehy.

In that case, the applicant had been convicted of an offence of using hydrocarbon oil in the fuel tank of a vehicle in respect of which

the relevant excise duty had not been paid. The duty had been imposed under an order purportedly made under s. (1)(d) of the

Imposition of Duties Act, 1957. The applicant having sought an order of certiorari by way of judicial review, it was held by Blayney J.

in the High Court that the provisions of the Act of 1957 giving the government power to impose customs and excise duties on

imported goods constituted an impermissible delegation of the legislative powers of the Oireachtas, as the powers so delegated were

more than a mere giving effect to principles and policies contained in the Act itself, there being no policies contained therein. Section

46 of the Finance Act, 1976, however, provided that

“The Orders mentioned in the table to this section are hereby confirmed.”

One of the orders mentioned was the 1975 Order.

Rejecting a submission that s. 46 of the 1976 Act should be interpreted as having no effect, because the 1975 Order was invalid,

Blayney J. said

“There can be no doubt that the intention of the Oireachtas was that the Order should be part of the law of the State. The

confirmation of the Order was a clear expression of that intention. At the time it was believed that the order was valid but

that confirmation was necessary so that it would continue to have statutory force after the end of 1976. It would have

ceased to have effect at the end of that year if it were not confirmed. So the intention in confirming it was to give it the

status of a permanent statutory provision deriving its validity as from the end of 1976 from s. 46 and it seems to me

perfectly reasonable to interpret s. 46 as giving effect to that intention.”

That view of the law was unanimously upheld by this court (Finlay C.J., Griffin J., Hederman J., McCarthy J., and O’Flaherty J.).

A form of legislative incorporation by reference of secondary legislation more akin to the provision under examination in the present

case was considered by the House of Lords in Institute of Patent Agents and Others –v- Lockwood (1894) AC 347. The relevant

legislation in that case – the Patents, Designs and Trademarks Act, 1883, – enabled the Board of Trade under s. 101 to make general

rules regulating the practice of registration under the Act. It further provided that such rules were “to be of the same effect as if

they were contained in this Act”. Any such rules were to be laid before both Houses of Parliament and could be annulled by resolution

of either House within the specified time, in which case they were to be “of no effect”. A subsequent Act of 1888 which dealt with

the registration of persons as patent agents, enabled the Board of Trade to make general rules for giving effect to the section. It

further said that

“The provisions of s. 101 of [The Act of 1883] shall apply to all rules so made as if they were made in pursuance of that

section.”

The Board of Trade made certain rules which were laid before parliament and which were not annulled within the specified period. The

respondent was prosecuted for continuing to practice as a patent agent after his name had been erased for failing to pay the

prescribed annual fee. He then contended that the rules in question were ultra vires the powers of the Board of Trade. Lord Herschell

LC, having found the rules to be in any event intra vires, went on to consider the effect of the provision that the rules were to be “of

the same effect as if they were contained in this Act”. He said

“I own I feel very great difficulty in giving to this provision that they ‘shall be of the same effect as if they were contained in

this Act’ any other meaning than this, that you shall for all purposes of construction or obligation or otherwise treat them

exactly as if they were in the Act … The words to which I have referred are really meaningless unless they have the effect

which I have described and they seem to me to be the apt and appropriate words for bringing about the effect which I have

described. They are words, I believe, to be found in legislation only in comparatively recent years and it is difficult to

understand why they have been inserted unless with the object I have indicated.”

Finally, the relevant provision of Article 26 of the Constitution, on which the respondent also relied, should be set out. Article 26.1.1º

provides that

“The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme

Court for a decision on the question of whether such Bill or any specified provision or provisions of such Bill is or are

repugnant to this Constitution or to any provision thereof.” (Emphasis added)

Conclusion

Since there is no provision in the Constitution which expressly prohibits the Oireachtas from enacting legislation in the form of s. 2 of

the 1999 Act, the onus rested on the respondent to establish clearly that it was invalid having regard to the provisions of the

Constitution.

It is beyond argument that, if the provisions of the orders made under the 1935 Act to which the Oireachtas wished to give statutory

effect had been set out in extenso in the Act itself, the enactment could not have been successfully challenged on the ground that it

was purporting to convert a statutory instrument into an Act of the Oireachtas. The respondent’s case, accordingly, depends on the

proposition that the form of incorporation by reference adopted by the Oireachtas in this case was by implication repugnant to the

Constitution.

It is manifest from what has already been said that the Constitution affords a strikingly wide latitude to the Oireachtas in adopting

whatever form of legislation it considers appropriate in particular cases. Under Article 15 it enjoys the sole and exclusive power of

making laws for the state and where, as here, it has expressed its clear and unequivocal intention that particular instruments should

have the force of law in the State, it is difficult to see on what basis it can be asserted that it has exceeded or abused its exclusive

legislative role. In the view of the court, the choice by the Oireachtas to incorporate the instruments in question by reference rather

than by setting out their text verbatim in the body of the Act was one which they were entitled to make, unless it can be clearly

established that the result was in conflict with specific provisions of the Constitution.

That conclusion is supported by the decision of the High Court and this Court in McDaid –v- Sheehy. While that was a case in which

the secondary legislation was purportedly given statutory effect by a confirming Act rather than by incorporation by reference and

the constitutional arguments addressed in this case do not seem to have been advanced, it is clear that Blayney J., in a judgment

unanimously upheld in this Court, was satisfied that, where the intention of the Oireachtas to give a particular statutory instrument

the force of law in the State was clear, that intention should be given effect to by the courts. Similarly, for the Court in this case to

conclude that s. 2 of the 1999 Act should be treated as invalid because it did not set out in extenso the provisions of the relevant

Orders, would be to frustrate the clearly and unambiguously expressed intention of the Oireachtas that the provisions in question

should be given statutory effect.

As has already been emphasised, there is no prohibition of the practice of incorporation by reference of other instruments in a bill in

the Constitution. Nor is there any reason to imply such a prohibition. It cannot be assumed that, because the incorporated provision

is not set out in the text of the Act proper, it was not the subject of the appropriate degree of legislative scrutiny before it was

passed. Any such assumption would be at variance with the respect which each of the three great organs of State owes to the

others: see the judgment of the former Supreme Court in Buckley and Others –v- Attorney General [1950] I.R. 67 at p. 81. The

instruments in question were orders which, at the time s. 2 of the 1999 Act was enacted had been made under the 1935 Act and

their contents were ascertainable by reference to the officially published texts of the instruments.

The proposition that the requirements of Article 4 as to the signature, promulgation and enrolling of legislation were not complied with

because the statutory procedure of incorporation by reference was adopted is, in the view of the court, wholly unsustainable. These

articles appear in the Constitution because of the importance of ensuring that an official and authoritative text of every Act passed

by the Oireachtas and signed by the President is permanently available in the office of the Registrar of this court. Those requirements

have been met in this case and the fact that the enactment incorporates by reference other legal instruments in accordance with

well established legislative procedures cannot deprive it of the character of an Act passed by both Houses, signed by the President

and duly promulgated and enrolled in accordance with the Constitution.

The case advanced on behalf of the respondent, would, moreover, have the remarkable consequence that the procedure normally

adopted for incorporating international conventions by reference would be invalidated in its entirety. As the examples cited

demonstrate, the relevant legislation in the case of such conventions typically does no more than provide that they are to have the

force of law in the State, subject to whatever modifications are considered necessary. If the respondent’s submissions were well

founded, one would expect to find the individual provisions of the convention set out in extenso in the body of the Act itself. As has

already been noted, the normal procedure is to set out the English text of the convention (and in at least one case the Irish text) in

a schedule, expressly for convenience of reference only. If in any case a dispute arose as to whether the text of the English version

of the convention was accurately reproduced in the official volume of statutes published by the stationary office, that dispute could

not be resolved by reference to the text of the Act as enrolled in the Office of the Supreme Court: it could only be resolved by

reference to the signed and authenticated text of the convention itself as deposited with whichever of the contracting parties is

nominated as the depository of the instrument in accordance with normal procedures in public and private international law.

This court cannot accept the proposition that the framers of the Constitution in 1937, while conferring on the Oireachtas the

exclusive role of making laws for the State, intended to limit their 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 their provisions

in extenso. As the decision of the House of Lords in Institute of Patent Agents –v- Lockwood demonstrates, that precise form of

statutory incorporation by reference was already established towards the end of the nineteenth century and there is nothing in the

Constitution to indicate that the choice of the Oireachtas to legislate in that rather than another form was in anyway inhibited.

The court is satisfied that this view of the law is in no way affected by the provisions of Article 26.1.1º enabling the President to

refer a Bill to this court for a decision as to whether the Bill or any specified provision or provisions thereof is or are repugnant to the

Constitution. If the President, after consultation with the Council of State, was of the view that a reference was desirable because

one or more of the provisions contained in the Orders being given statutory effect were of questionable constitutional validity, there

was nothing to prevent her from referring s. 2 of the Bill to this court for a decision as to its constitutionality. That would be the

reference of a “specified provision” within the meaning of Article 26.1.1º and the fact that only part of the specified provision was, in

the view of the President, of questionable validity would not in the slightest degree affect her power to make such a reference.

Holders of the office of President have, in the past, referred an entire bill to this court for a decision as to its constitutionality,

although it was inconceivable that every single provision in the bill was regarded as of questionable validity: see, for example, Re

Article 26 and The Employment Equality Bill [1997] 2 I.R. 321.

The court is satisfied that the respondent failed to discharge the onus resting on her of establishing clearly that s. 2 of the 1999 Act

is invalid having regard to the provisions of the Constitution. The appeal, will, accordingly, be allowed, the Order of the High Court set

aside and an order substituted therefor dismissing the respondent’s claim.