Supreme Court allows appeal on delegated legislation validity but dismisses second applicant's judicial review claim.

THE SUPREME COURT

Keane C.J.

Murray J.

McGuinness J.

Fennelly J.

McCracken J.

BETWEEN

39 & 53/04

ILONA LEONTJAVA

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

DISTRICT JUDGE MARY COLLINS

NOTICE PARTY

BETWEEN

40 & 52/04

LIU CHANG

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

DISTRICT JUDGE BROPHY

NOTICE PARTY

JUDGMENT delivered the 23rd day of June, 2004, by Keane C.J.

Introduction

The factual background to these two cases is as follows.

The first named applicant is a Latvian national. She was arrested on the 5th June, 2003 and brought before the District Court. She

was there charged with the offence of remaining in the State after the time set for her departure contrary to what was alleged to be

a condition imposed on her as an alien when she was given leave to land in the State. On 30th June, 2003, she was given leave to

apply by way of an application for judicial review for inter alia the following reliefs:

(i) An order of prohibition prohibiting her trial in Kilmainham District Court and prohibiting the respondents from further pursuing

the prosecution in respect of the charge;

(ii) A declaration that Article 5(6) of the Aliens Order, 1946 as inserted by Article 3 of the Aliens (Amendment) Order, 1975

(under which the condition in question was purportedly imposed) is ultra vires s. 5(1) of the Aliens Act, 1935 (hereafter “the

1935 Act”);

(iii) A declaration, if necessary, that s. 5(1) of the 1935 Act is inconsistent with the Constitution and invalid;

(iv) A declaration, if necessary, that s. 2(1) of the Immigration Act, 1999 is repugnant to the Constitution and invalid.

It was further ordered that the proceedings before the District Court be stayed pending the determination of the application for

judicial review.

The second named applicant is a Chinese national. He was remanded in custody on the 2nd May, 2003 by the notice party at Trim

District Court to answer a charge that he, being an alien, had failed to produce to a member of An Garda Síochána his registration

certificate, a valid passport, or a document satisfactorily establishing his identity, he not having satisfactorily explained the

circumstances (if any) which prevented him from doing so.

On the 26th May, 2003, the second named applicant was given leave to apply by way of judicial review for inter alia the following

reliefs:

(i) An order of prohibition by way of judicial review prohibiting his trial in Trim District Court and prohibiting the respondents from

further pursuing the prosecution in respect of the above charge;

(ii) A declaration that Article 15 of the Aliens Order, 1946 as amended is ultra vires s. 5(1) of the 1935 Act;

(iii) A declaration, if necessary, that s. 5(1) of the 1935 Act is inconsistent with the Constitution and invalid;

(iv) A declaration, if necessary, that s. 2(1) of the Immigration Act, 1999 is repugnant to the Constitution and invalid.

It was ordered that the proceedings before the District Court be stayed pending the determination of the application for judicial

review.

Statements of opposition having been delivered on behalf of the respondents, the substantive hearing of both applications came on

before Finlay-Geoghegan J. In a reserved judgment delivered on the 22nd January, 2004 the learned trial judge found that the

applicant in each case was entitled to the order of prohibition sought. In the case of the first named applicant, she found that she

was entitled to a declaration that Article 5(6) of the Aliens Order, 1946 was ultra vires s. 5(1) of the 1935 Act and to a declaration

that s. 2 of the Immigration Act, 1999 was repugnant to the Constitution and invalid. In the case of the second named applicant, she

found that he was entitled to a declaration that s. 5(1)(h) of the 1935 Act was inconsistent with the Constitution and invalid, a

declaration that Article 15 of the Aliens Order, 1946 was invalid and a declaration that s. 2 of the Immigration Act, 1999 was

repugnant to the Constitution and invalid.

The respondents in both cases have now appealed to this court from the judgment and order of the High Court granting these reliefs.

The first named applicant has served a notice of cross-appeal (recte a notice to vary) in respect of the refusal by the learned trial

judge to grant a declaration that s. 5(1)(b) of the 1935 Act was inconsistent with the Constitution and ceased to have effect in the

law by virtue of Article 50.

This judgment deals with the findings of the learned trial judge other than her finding that s. 2 of the Immigration Act, 1999 (hereafter

“the 1999 Act”) is invalid having regard to the provisions of the Constitution.

The statutory framework

The regulation under which the first named applicant was prosecuted is Article 5 of the Aliens Order, 1946 (hereafter “the 1946

Order”) as inserted by Article 3 of the Aliens (Amendment) Order, 1975 (hereafter “the 1975 Order”). The relevant provisions are as

follows:

“5(1) An alien coming from a place outside the State other than Great Britain or Northern Ireland shall, on arrival in the State,

present himself to an immigration officer for leave to land.

(6) An immigration officer may attach conditions as to the duration of stay and the engagement in business permitted to an

alien granted leave to land, and the alien shall comply with the conditions.”

Those provisions were made in purported pursuance of s. 5(1) of the 1935 Act which provides that

“ The Minister [for Justice] may, if and whenever he thinks proper, do by order (in this Act referred to as an aliens order) all

or any of the following things in respect either of all aliens or of aliens of a particular nationality or otherwise of a particular

class, or of particular aliens, that is to say:-

(a) prohibit the aliens to whom the order relates from landing in or entering into Saorstát Eireann;

(b) impose on such aliens restrictions and conditions in respect of landing in or entering into Saorstát Eireann, including limiting

such landing or entering to particular places or prohibiting such landing or entering at particular places …”

The regulation on foot of which the second named applicant was prosecuted is Article 15 of the 1946 Order which provides that

“(1) Every alien shall produce on demand, unless he gives a satisfactory explanation of the circumstances which prevent him

from so doing, either -

(a) in case he is registered or deemed to be registered under this Order, his registration certificate, or

(b) in any other case, a valid passport or some other document satisfactorily establishing his nationality and identity.

(2) In this Article the expression ‘on demand’ means on demand made at any time by any immigration officer or member of

the Garda Síochána.

(3) The provisions of this Article shall not apply to -

(a) an alien under the age of 16 years, or

(b) an alien who was born in Ireland, or

(c) an alien woman who is married to or is the widow of an Irish citizen.”

These provisions were also purportedly made pursuant to s. 5(1) of the 1935 Act which, in addition to the provisions already

mentioned, enabled the Minister in sub-paragraph (h) to

“ require such aliens to comply, while in Saorstát Eireann, with particular provisions as to registration, change of abode,

travelling, employment, occupation, and other like matters.”

A majority of this court concluded in Laurentiu –v- Minister for Justice, Equality and Law Reform & Anor, [1999] 4 IR 26, that s.

5(1) of the 1935 Act was inconsistent with the Constitution and had not survived the enactment of the Constitution insofar as it

empowered the Minister, under sub-paragraph (e) to

“ make provision for the exclusion or the deportation and exclusion of such aliens from Saorstát Eireann and provide for and

authorise the making by the Minister [for Justice] of orders for that purpose …”

Following that decision, s. 2 of the 1999 Act was passed which provides that

“(1) Every order made before the passing of this Act under section 5 of the Act of 1935 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 subsection (1) would, but for this subsection, conflict with a constitutional right of any person, the operation of that

subsection 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 orders set out in the Schedule are Article 13 of the 1946 Order (which provides for the deportation of aliens) and the Aliens

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

The High Court judgment

In her judgment, the learned trial judge considered first the question as to whether Article 5(6) of the 1946 Order, as amended, was

intra vires s. 5(1)(d) or 5(1)(h) of the 1935 Act. She concluded that the “restrictions and conditions” referred to in s. 5(1)(d) were

clearly intended to apply to the actual landing or entering into the State of an alien. She was also of the view that none of the

remaining sub-paragraphs of s. 5(1) indicated an intention on the part of the Oireachtas that the Minister could authorise an

immigration official to determine the time for which an alien might be permitted to remain in the State and thereafter to require the

alien to comply with such a condition. She accordingly concluded that Article 5(6) of the 1946 Order was ultra vires s. 5(1) of the

1935 Act.

The learned trial judge then went on to consider whether Article 15(1) of the 1946 Order was intra vires s. 5(1)(h) of the 1935 Act.

Having noted that the sub-section expressly authorised the Minister to make an order requiring aliens to comply, while in the State,

with particular provisions as to “registration, change of abode, travelling, employment, occupation and other like matters”, she

concluded that this gave the Minister “a very broad authorisation” as to the provisions which he might specify with which an alien

might be required to comply. She was also of the view that the requirement to produce identity documents was sufficiently related to

the matters expressly specified in paragraph (h) to come within the generic description of “other like matters”. She accordingly

concluded that Article 15 of the 1946 Order was intra vires s. 5(1) of the 1935 Act.

In the light of her conclusion that Article 5(6) of the 1946 Order was ultra vires s. 5(1) of the 1935 Act, the trial judge was of the

view that it was not appropriate for her to consider whether the parent provision, s. 5(1)(b) of the 1935 Act, was inconsistent with

the Constitution and hence had ceased to be part of the law when the Constitution was enacted. While the notice to vary (described

as a “notice of cross-appeal”) invited this court to hold that she was wrong in that determination and to grant the declaration

sought, I am satisfied that, if the trial judge was correct in finding that Article 5(6) of the 1946 Order was ultra vires, she was also

correct in concluding that it was unnecessary for her to consider whether the parent statute was inconsistent with the Constitution.

Since, however, the respondents relied on the provisions of s. 2 of the 1999 Act as giving statutory effect to Article 5(1),

notwithstanding its being ultra vires the 1935 Act, she went on to consider the submission on behalf of the first named applicant that

this provision was invalid having regard to the provisions of the Constitution and, as already noted, concluded that it was. She

accordingly granted the first named applicant the relief to which I have already referred, including an order restraining the

continuance of the prosecution.

In the case of the second named applicant, the trial judge, having concluded that Article 15 of the 1946 Order was intra vires s. 5(1)

(h) of the 1935 Act, went on to consider whether the enabling provision was inconsistent with the Constitution and in particular

Article 15.2 thereof. Having referred to the decisions of this court in Cityview Press Ltd. – v- An Chomhairle Oiliúna [1980] IR 381 and

Laurentiu, she concluded that s. 5(1)(h) of the 1935 Act did not set out any “policies and principles” according to which the power

given to the Minister to require aliens to comply while in the State in relation to the matters therein should be exercised. She

accordingly concluded that s. 5(1)(h) was inconsistent with Article 15.2 of the Constitution and had not survived the enactment of

the Constitution. As already noted, she was also of the view that s. 2 of the Immigration Act, 1999 was invalid having regard to the

provisions of the Constitution and that, in the result, it had not given statutory force to the provisions of Article 15 of the 1946

Order. She accordingly granted that second named applicant the reliefs already referred to, including an order restraining any

proceedings against him in the District Court.

Submissions of the parties

On behalf of the appellants, Mr. Paul Gallagher S.C. submitted that the power to make an order authorising an immigration officer to

attach conditions as to the duration of stay and engagement in business permitted to an alien granted leave to land and requiring the

alien to comply with those conditions was necessarily implied in the statutory delegation of powers to the Minister pursuant to s. 5(1)

of the 1935 Act and, in particular, sub-paragraphs (b) and (d) thereof. He cited in support of this the decision of this court in Cassidy

–v- Minister for Industry & Commerce [1978] IR 297. He further submitted that the Minister had a reasonable degree of latitude in

making orders designed to achieve a statutory objective in accordance with the Act of the Oireachtas, citing observations of Murphy

J. in O’Neill –v- Minister for Agriculture & Food [1997] 1 IR 539.

As to the finding by the trial judge that s. 5(1)(h) of the 1935 Act was inconsistent with Article 15.2.1 of the Constitution, Mr.

Gallagher submitted that, in contrast to s. 5(1)(e) of the Act, which the court had held to be inconsistent with that Article in

Laurentiu, s. 5(1)(h) did contain sufficient principles and policies for the purpose of guiding and constraining the exercise by the

Minister of his power to make secondary legislation. He said that such an approach was entirely consistent with the necessity for the

Minister to have a discretion to make decisions within the ambit of the statute, citing in support the observations of Fennelly J. in

Maher –v- Minister for Agriculture, Food & Rural Development [2001] 2 IR 139.

On behalf of the first and second named applicants, Mr. Gerard Hogan S.C. submitted that it was beyond dispute that s. 5(1)(b) did

not expressly authorise the Minister to impose conditions by regulation as to the duration of stay of aliens or obliging them to comply

with such conditions: still less did it authorise an immigration officer to impose such conditions on aliens. In these circumstances,

while the appellants were driven to argue that the power of the Minister or the immigration officer to attach such conditions was

“necessarily implied” having regard to the provisions of s. 5(1), it was clear that there was no such necessary implication. Such a

power could only be implied in exceptional cases and it would be extremely unlikely that the Oireachtas had intended to confer them

in a criminal case such as the present. He cited in support the decisions of the High Court in An Blascaod Mór Teo. –v- Commissioners

for Public Works in Ireland (unreported, Kelly J., judgment delivered December 19th, 1996) and Howard –v- Commissioners for Public

Works in Ireland [1994] 1 IR 101. He submitted that, accordingly, the finding of the trial judge that Article 5(6) was ultra vires was

correct.

Mr. Hogan further submitted that the trial judge was in error in concluding that Article 15 was intra vires: while the section enabled

the Minister to make regulations as to registration, it was silent on the question as to whether an alien could be required to produce

his identity documents. In the absence of any express power enabling an immigration officer, under pain of a criminal sanction to

demand that an alien produce his documentation, there was no basis for treating s. 5(1)(h) as conferring such a power by implication.

Mr. Hogan further submitted that if, contrary to his submission, Article 5(6) was intra vires, it followed inevitably that s 5(1)(b) was

inconsistent with the Constitution, since it left the Minister totally at large as to the imposition of conditions on aliens landing or

entering the State. If the section was to be further construed, as contended for on behalf of the appellants, so as to give the

Minister an untrammelled discretion to limit the duration of a stay, it would clearly fail the “principles and policies” test laid down in

Cityview Press Ltd. and Laurentiu. He further submitted that the same considerations applied to s. 5(1)(h) where the Minister was

totally at large in respect of matters such as registration, change of abode, travelling, employments and occupation. Nor was there

any guidance as to what the legislature had in mind when providing that the Minister could require aliens to comply with “particular

provisions” as to such matters. He submitted that it followed that s. 5(1)(h) was also inconsistent with the Constitution as failing the

“principles and policies” test.

Conclusion

I consider first the finding by the trial judge that Article 5(6) of the 1946 Order was ultra vires s. 5(1) of the 1935 Act.

It is clear that where, as here, the legislature has by statute delegated to a Minister or other body the power to enact subordinate

legislation, the latter will be ultra vires the parent statute if it is not, in the words of Henchy J., speaking for this court in Cassidy –v-

Minister for Industry & Commerce,:

“within the limitations of that power as they are expressed or necessarily implied in the statutory delegation.”

In the present case, the power conferred on the Minister by the legislature was to impose by order on aliens

“restrictions and conditions in respect of landing in or entering into Saorstát Eireann, including limiting such landing or

entering to particular places or prohibiting such landing or entering at particular places …”

(Emphasis added )

It is no doubt the case that the Minister was not confined by the wording of s. 5(1)(b) to making regulations specifying the particular

places at which an alien could enter the State or prohibiting the alien from entering the State at particular places. The use of the

word “including” would seem to suggest that his power to impose restrictions and conditions on aliens in respect of their landing in or

entering into the State was not intended to be so confined. It was obviously envisaged, for example, that the regulations would

provide for the interviewing by immigration officers of aliens entering the State.

Article 5(6), however, goes considerably further. It deals, not merely with the entry by an alien into the State: it purports to

empower the imposing of a condition requiring the alien to leave the State after the expiration of a specified time. There is no

indication in the wording of s. 5(1)(b) that the Oireachtas intended the Minister to enjoy such a power not did the granting of the

power actually conferred carry with it any necessary implication that it would also extend to limiting the duration of stay of the alien.

Even if s. 5(1)(b) could be read as conferring such a power either expressly or by implication, there is no indication of any intention

on the part of the legislature to confer the power on any person other than the Minister, e.g. an immigration officer.

That conclusion is unaffected by the provisions of s. 5(1)(d) of the 1935 Act which empowers the Minister to

“impose on such aliens restrictions and conditions in respect of leaving Saorstát Eireann including limiting such leaving to

particular places or particular means of travelling or prohibiting such leaving from particular places or by particular means of

travelling.”

Again, there is no indication of any intention on the part of the legislature to impose conditions requiring aliens to leave on the

expiration of specified time or to confer on immigration officers powers of the kind actually granted by Article 5(6).

I am satisfied that the decision of the trial judge that Article 5(6) of the 1946 Order was ultra vires s. 5(1)(b) and (d) of the 1935

Act was correct. It is, accordingly, unnecessary to consider whether s. 5(1)(b) and (d) were in any event inconsistent with the

Constitution and did not survive its enactment.

I am also satisfied that the trial judge was correct in holding that Article 5(15) of the 1946 Order requiring an alien to produce on

demand his registration certificate (where applicable) or a passport or other document establishing an alien’s nationality and identity

was intra vires the provisions of s. 5(1)(h) of the 1935 Act. While that sub-paragraph does not expressly refer to requirements as to

the production of a passport or other document establishing his nationality and identity, it is quite clear, in my view, that the

expression “other like matters” in s. 5(1)(h) would extend to the production of documents enabling the immigration authorities to

establish the nationality and identity of an alien while in the State.

There remains the question as to whether s. 5(1)(h) is inconsistent with the Constitution and did not survive its enactment.

The test to be applied in resolving that issue is to be found in the well-known passage from the judgment of O’Higgins C.J. speaking

for this court in Cityview Press –v- An Chomhairle Oiliúna, i.e.

“…whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to

principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a

purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other

hand, if it be within the permitted limits – if the law is laid down in the statute and details only are filled in or completed by the

designated Minister or subordinate body – there is no unauthorised delegation of legislative power.”

In Laurentiu, where the constitutional validity of s. 5(1)(e) was in issue, the majority were of the view that, in delegating to the

Minister the exclusive power of making provision for the exclusion or deportation of aliens (including aliens of a particular nationality),

the legislature had abdicated its policy making rule in the entire area of exclusion and deportation to the Minister. In my judgment in

that case, I emphasised that the provision under attack could not be construed as a formulation of the policy of the State in relation

to the exclusion and deportation of aliens, leaving the detailed aspects of the policy to be filled in by subordinate legislation. Since

the right to exclude and deport aliens derived from the character of Saorstát Eireann as a sovereign state, it was not vested in the

State by virtue of the 1935 Act. It followed that the only policy being implemented by the 1935 Act and the delegated legislation

purportedly made thereunder was the regulation of the exercise of that sovereign power by the executive. Conferring the exclusive

right so to regulate its exercise on the Minister was not the choice of a particular policy by the legislature: it was the assignment to

the executive by the legislature of exclusive responsibility for determining policy in that specific area, including decisions as far

reaching as the exclusion from the State of all persons of a particular nationality.

No such considerations, in my view, arise in the case of s. 5(1)(h). The policy enunciated is plain: the desirability of regulating the

registration, change of abode, travelling, employment and occupation of aliens while in the State and the further desirability of

regulating “other like matters”. The use of the expression “particular provisions” in this context is, in my view, unexceptionable: it

was entirely appropriate for the legislature to specify the matters which they considered required regulation, while leaving it to the

Minister to put in place specific regulatory provisions. Similarly, the use of the expression “other like matters” is what one would

expect in a provision conferring a power of delegated legislation: the use of the phrase “other like matters” is peculiarly appropriate

where the broad scope of the envisaged regulations is being set out in statutory form. To require the legislature either to specify the

“particular provisions” or the “other like matters” in the parent legislation itself would be to negate the whole purpose of the power

admittedly enjoyed by the Oireachtas to provide for delegated legislation. As Fennelly J. observed in Maher –v- Minister for

Agriculture:

“This type of delegated legislation is, by common accord, indispensable for the functioning of the modern state. The necessary

regulation of many branches of social and economic activity involves the framing of rules at a level of detail that would

inappropriately burden the capacity of the legislature. The evaluation of complex technical problems is better left to the

implementing rules. They are not, in their nature such as to involve the concerns and take up the time of the legislature.

Furthermore, there is frequently a need for a measure of flexibility and capacity for rapid adjustment to meet changing

circumstances.”

I would accordingly allow the appeal to that extent and set aside the decision of the trial judge that s. 5(1)(h) was inconsistent with

Article 15.2 of the Constitution and had not survived the enactment of the Constitution.

It follows that in the case of the second named applicant there should be substituted for the order of the High Court an order

dismissing his claim for relief by way of judicial review.

Since, however, I am satisfied that the trial judge was correct in the case of the first named applicant in finding that Article 5(6) of

the 1946 Order was ultra vires s 5(1)(b) and (d) of the 1935 Act , it follows that in her case, in my view, the court must consider

whether s. 2 of the Immigration Act, 1999 is invalid having regard to the provisions of the Constitution.