Supreme Court dismisses challenge to European Arrest Warrant Act 2003 as unconstitutional under Article 29.4.6.

THE SUPREME COURT

Record No: 277/2007, 238/07, 237/07

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.

BETWEEN: MOHAMMED IQBAL

PLAINTIFF/APPELLANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE ATTORNEY GENERAL

DEFENDANTS/RESPONDENTS

BETWEEN: MAROŠ ŠULEJ.

PLAINTIFF/APPLICANT

AND

THE ATTORNEY GENERAL

AND

THE MINISTER FOR JUSTICE,

EQUALITY AND LAW REFORM

DEFENDANTS/RESPONDENTS

BETWEEN: TOMÁS PUTA

PLAINTIFF/APPELLANT

AND

THE ATTORNEY GENERAL

AND

THE MINISTER FOR JUSTICE,

EQUALITY AND LAW REFORM

JUDGMENT of the Court delivered the 6th day May, 2008 by Murray C.J.

Each of the appellants is the subject of a European Arrest Warrant: issued, in the case of the first appellant, by a judicial

authority in the United Kingdom; in the cases of the second and third appellants a warrant, in each case, issued by a judicial

authority in the Czech Republic. The High Court has made an order, pursuant to s. 16(1) of the European Arrest Warrant

Act, 2003 (“the Act of 2003”), in each case, ordering the surrender of the appellant to a person duly authorised by the

issuing state to receive him.

Each of the appellants commenced plenary proceedings in the High Court claiming a:

“Declaration that Council Framework Decision of 13th June 2002 was not properly ratified by the

Oireachtas as required by the Constitution and/or that the European Arrest Warrant Act, 2003, as

amended, which purports to reflect the Framework Decision is invalid and of no effect……”

The appellants claim that the Act of 2003 is repugnant to the Constitution. They contend that the Act was enacted without

“the prior approval of both Houses of the Oireachtas,” as required by Article 29.4.6 of the Constitution. The High Court

(Peart J) dismissed the claim in each case. The appellants now appeal.

The appellants are directly affected by orders made pursuant to the Act of 2003. They have the required standing to allege

that the Act is invalid, by reason of having been enacted contrary to the provisions of the Constitution.

The people, by the Eighteenth Amendment to the Constitution, authorised the State to ratify the Treaty of Amsterdam of

1997. Article 29.4.5 of the Constitution, as so amended, provides:

“The State may ratify the Treaty of Amsterdam amending the Treaty on European Union, the Treaties

establishing the European Communities and certain related acts signed at Amsterdam on the 2nd day of

October, 1997.”

Article 29.4.6 provides:

“The State may exercise the options or discretions provided by or under Articles 1.11, 2.5 and 2.15 of

the Treaty referred to in subsection 5° of this section and the second and fourth Protocols set out in the

said Treaty but any such exercise shall be subject to the prior approval of both Houses of the

Óireachtas.”

For the purposes of the present appeal, only the “options or discretions” provided by Article 1.11 of the Amsterdam

Treaty are relevant. Article 1.11 of that Treaty amended Title VI of the existing Treaty on European Union (the Maastricht

Treaty) by replacing that Title in its entirety. Title VI of the Treaty on European Union (“TEU”) is headed: “Provisions on

Police and Judicial Cooperation in Criminal Matters.” That Title, as set out in the Treaty of Amsterdam, is divided into

Articles enumerated K.1 to K.14. Article K.6 of Title 6 has become Article 34 of the Treaty on European Union includes

the power, inter alia, for the Council of the European Union to adopt framework decisions.

Article 34 TEU reads as follows:

1. In the areas referred to in this title, Member States shall inform and consult one another within the

Council with a view to coordinating their action. To that end, they shall establish collaboration between

the relevant departments of their administrations.

2. The Council shall take measures and promote cooperation, using the appropriate form and procedures

as set out in this title, contributing to the pursuit of the objectives of the Union. To that end, acting

unanimously on the initiative of any Member State or of the Commission, the Council may:

(a) adopt common positions defining the approach of the Union to a particular matter;

(b) adopt framework decisions for the purpose of approximation of the laws and regulations of the

Member States. Framework decisions shall be binding upon the Member States as to the result to be

achieved but shall leave to the national authorities the choice of form and methods. They shall not entail

direct effect,

(c) adopt decisions for any other purpose consistent with the objectives of this title, excluding any

approximation of the laws and regulations of the Member States. These decisions shall be binding and

shall not entail direct effect; the Council, acting by a qualified majority, shall adopt measures necessary

to implement those decisions at the level of the Union;

(d) establish conventions which it shall recommend to the Member States for adoption in accordance

with their respective constitutional requirements. Member States shall begin the procedures applicable

within a time limit to be set by the Council……..

In exercise of the power conferred by in Article 34(2)(b), the Council adopted Council Framework Decision of 13 June

2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA).

The Oireachtas enacted the Act of 2003 for the purpose, as its long title proclaims, of giving effect to the Framework

Decision. Section 10 of the Act gives general effect to its provisions. It provides:

“Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a

person—

(a) against whom that state intends to bring proceedings for the offence to which the European arrest

warrant relates, or

(b) on whom a sentence of imprisonment or detention has been imposed and who fled from the issuing

state before he or she—

(i) commenced serving that sentence, or

(ii) completed serving that sentence,

that person shall, subject to and in accordance with the provisions of this Act and the Framework

Decision be arrested and surrendered to the issuing state.”

The Act of 2003, since it gave legal effect in the state to the provisions of the Framework Decision, necessarily had to have

been enacted after the adoption of that measure. Article 29.4.6 of the Constitution required the prior approval of the Houses

of the Oireachtas to the exercise by the State of any of the “options or discretions” provided for by Article 1.11 of the

Amsterdam Treaty. Article 34 of the Treaty on European Union required a unanimous vote of the Council for the adoption

of the Framework Decision. The government, exercising the executive power of the State within the Council, could not have

participated in the adoption of the Framework Decision without the prior approval of both Houses of the Oireachtas.

On 11th December 2001, some seven months before the adoption of the Framework Decision, a proposal for the exercise

of an option or discretion pursuant to Article 1.11 of the Amsterdam Treaty in the form of a draft Framework Decision was

placed before the Houses. On 12th December 2001 the Minister for Justice, Equality and Law Reform proposed a

resolution in Dáil Eireann in the following terms:

“That Dáil Eireann approves the exercise by the State of the option or discretion provided by Article

1.11 of the Treaty of Amsterdam to take part in the adoption of the following proposed measure: a

proposal for a Council framework decision on the European arrest warrant and the surrender procedures

between member states, a copy of which was laid before Dáil Eireann on 11th December.”

The front page of the document referred to in the resolution, a copy of which was laid before the Dáil, bore a date: Brussels,

10 December 2001. It was numbered COPEN 79 CATS 50. It was headed: “OUTCOME OF PROCEEDINGS, from:

COUNCIL, on: 6/7 December 2001.” The subject was described as: “Proposal for a Council Framework Decision on the

European arrest warrant and the surrender procedures between Member States.” That page, together with its corrected

version (called “corrigendum”), indicated that on 6th December fourteen delegations (from Member States) had agreed to

the draft Framework Decision as it stood in the Annex. There were then fifteen Member States. It also contained a number

of indications of “parliamentary scrutiny reservations” from several Member States including Ireland. Ireland was also noted

as having made a declaration concerning the Central Authority and the meaning of the words “executing judicial authorities.”

The document annexed to that page contained a draft of the proposed Framework Decision. A footnote stated that “the

English and other versions will have to be revised in the light of the French version, as French was the original language

of the Draft.”

The Dáil resolution was agreed without a vote. A corresponding resolution was passed by Seanad Eireann on the same

evening.

The Appellants’ Submissions

The written submissions on behalf of the appellants criticise the “apparent haste with which the process” in the two Houses

of the Oireachtas was conducted. Only one hour was allowed for debate. The Seanad motion was moved and passed late at

night. A number of members of the Houses complained that inadequate time was being allowed for consideration of such an

important measure. The Minister acknowledged the time pressures involved, stating:

Time pressures can mean that proposals will be brought to parliaments for approval when negotiations

at EU level are either still in train or just barely concluded.

The result is that the Dáil and Seanad are being asked to debate texts the “latest version” of which only

became available yesterday. It is likely to be the final shape of the decision.

Third Pillar business is progressing in a way that will require us to look afresh at how we conduct

business efficiently and effectively at EU level while facilitating the necessary level of oversight and

scrutiny by the Houses of the Óireachtas.

The Court has been informed of cogent criticisms by academic writers and others of the hastiness of the parliamentary

procedure and the inadequate time permitted for parliamentary scrutiny. However, Dr Michael Forde, Senior Counsel for

the appellants, as is recorded in the judgment of Peart J, made it clear that he “was not attacking or impugning what the

Oireachtas did on the 12th December 2001.” Peart J noted:

“The plaintiff accepts that what happened on that occasion is beyond reproach, and that the resolution

which was passed approving the proposal then presented to each House of the Oireachtas was one

properly passed.”

Dr Forde also accepted at the hearing of the appeal that he cannot ask this Court to question the procedures of the Houses

of the Oireachtas. He does not, therefore, seek to challenge the validity of the resolutions passed on 12th December.

This very clear concession renders irrelevant an argument advanced by the Minister that the resolutions passed by the

Houses of the Oireachtas were not justiciable.

Dr Forde argued for a distinction between legislation adopted, over many years, pursuant to the Treaty Establishing the

European Community and that adopted pursuant to the Treaty on European Union. The former treaty predominantly

concerned commercial matters. No prior legislative approval is required for State participation in the institutional machinery

of the Communities. Regulations or, subject to certain conditions, directives may have direct effect in Irish law. The Treaty

on European Union, on the other hand implicates the core of national sovereignty, extending, as it does, to the field of

criminal justice. Before the State can participate within the Council of the European Union in the adoption of Framework

Decisions, there must be compliance with Article 29.4.6. The purpose of that provision, Dr Forde argued, is to confer upon

the adopted measures the immunity from constitutional challenge provided by Article 29.4.10.

Dr Forde referred to discrepancies or differences between the proposed or draft measure which the Houses approved on

12th December and the Framework Decision as adopted in June 2002 and given legislative effect by the Act of 2003. He

says that the differences between the draft and the final version of the Framework Decision were so substantial that the

Houses could not be said to have given their “prior approval” as required by Article 29.4.6 of the Constitution.

Dr Forde argued, in the alternative, for two approaches to evaluation of these differences. The first is to say that “prior

approval” must be given by both Houses for the precise version ultimately adopted. It is not sufficient to approve an earlier

draft. He submitted, as he had in the High Court, that nothing short of prior approval for the final text would satisfy the

constitutional requirement. Even the slightest change would, consequently, signify that Article 29.4.6 had not been complied

with. That provision did not permit the Houses of the Oireachtas to confer a broad mandate on the executive to negotiate in

Council. The second approach is that the Framework Decision as adopted departed to a very significant extent from the

draft version approved by the Houses.

It is common case that the draft proposal for a Framework Decision placed before the Houses on 12th December 2001

differed from that which was adopted unanimously by the Council on 13th June 2002. The document presented on 11th

December had been described both as a proposal and as a draft. Since it is not in issue that the documents are different, it is

appropriate to highlight the most significant divergences mentioned by Dr Forde. There are three.

There are two differences in the list of offences set out in Article 2 of the Framework Decision, which dispenses with the

requirement of double criminality:

· “Trafficking in stolen vehicles” in the final version replaces “motor vehicle crime” in the draft.

· “Counterfeiting of currency”, in the draft, included only “the euro” but extends in the Framework Decision, as adopted, to

any currency.

The Framework Decision is expressly stated to extend to Gibraltar, whereas the draft contains no mention of Gibraltar. Dr

Forde submitted that, if it were permissible, by amendment to extend the scope of the Framework Decision to include

Gibraltar, it would have been possible to extend it to cover any country in the world.

The appellants submit that the consequence of non-compliance with Article 29.4.6 is that the Act of 2003 is repugnant to the

Constitution.

The Minister submits that there is no doubt that the Houses of the Oireachtas approved the State’s participation in the

adoption of the Framework Decision, prior to its adoption and that it is the quality, and not the fact, of that approval that the

appellant seeks to impugn. Whereas the Constitution required the Houses of the Oireachtas to approve the exercise by the

State of an option or a discretion provided by or under, in the instant case, Article 1.11 of the Treaty of Amsterdam, it does

not require the Houses to approve any text, document or proposal, but rather to approve the exercise by the State of an

option or a discretion. The strict reading contended for by Dr Forde would involve reading words into the constitutional text

that are not there. What is approved in advance will not necessarily be the finished product and it is always possible that

something approved in advance may mutate before it is definitively approved. The Constitution permits the Houses to

confer a broad mandate upon the State in this context, though the Minister does not contend that it has done so in this case.

The Minister contrasts Article 29.5.1 of the Constitution with the Article at present under scrutiny. The former provision

requires that the actual text of “every international agreement to which the State becomes a party shall be laid before Dáil

Eireann.”

The Minister says that Article 29.4.6 vests exclusive power in the Houses of the Oireachtas to approve the exercise of the

options or discretions mentioned. In his written submissions he cites the judgment of this Court delivered by Murray C.J. in

Curtin v Dáil Eireann [2006] 2 I.R. 556 for the purpose of drawing an analogy with the case of Article 35.4.1 of the

Constitution concerning the removal of a judge from office.

The Minister relied on Curtin v Dáil Eireann and on the judgment of Murray J., as he then was in T.D. v Minister for

Education [2002] 4 I.R. 259 at 337, for the proposition that, unless it was shown that there had been “clear disregard” by

the legislative branch of government of its constitutional obligations in the exercise of a power, which the Constitution of

Ireland exclusively confers upon it, the issue as to how the Houses of the Oireachtas reached their determination or the

evaluation of the material they had before them when they did so is a matter reserved exclusively to them.

When the matter of the Framework Decision came back before the Oireachtas in the form of the bill which became the Act

of 2003, it is evident that the Oireachtas accepted that the mandate it had conferred on the executive had been properly

executed. If it had been otherwise, the Oireachtas could have refused to enact the legislation.

The Houses of the Oireachtas, in allowing the State, i.e., the executive arm of government to exercise the option provided

for by Article 1.11 of the Treaty of Amsterdam, were not required to approve any particular text. The objective evidence of

what was before the Houses of the Oireachtas discloses that it consisted of a proposed, not a final, Framework Decision,

expressly stated to being subject to parliamentary scrutiny reservations by a number of Member States, including Ireland.

The Houses assented to the exercise of the option or discretion in the full knowledge that they were not approving the

definitive text of the Framework Decision. Mr Anthony Collins, Senior Counsel accepted on behalf of the Minister that the

result could have been different if the Houses had given approval to what purported to be a final version of the Framework

Decision.

The Minister strongly supports the following passage from the judgment of Peart J in the High Court:

“When one comes to the passing of the Act on the 28th December 2003 giving effect to the Framework

Decision, the position is clear. On that occasion the members of the Oireachtas had the option to express

any concerns which they might have had that the Framework Decision which they were being asked to

give effect to by the passing of the proposed legislation was not one that had received their prior

approval before it was adopted on the 13th June 2002. I have been provided with no evidence of what

happened in the Oireachtas on the 28th December 2003, and in the absence of some evidence of a clear

disregard for its constitutional obligations, this Court must and will assume that the Act passed is a

constitutional Act and that any majority of members who voted for the legislation to be passed were

satisfied and entitled to be satisfied that what they were giving effect to was substantially the same

instrument which had been voted upon on the 12th December 2001. It is not for this Court to examine in

minute detail, or indeed at all, any textual or indeed other differences between one text and another. This

Court must assume that the Oireachtas was satisfied that the resolution which was passed by each House

on the 12th December 2001 was the constitutionally mandated prior approval for the exercise of the

option or discretion which was the Framework Decision being given effect to on the 28th December

2003.”

The Minister submitted that the variations between the draft approved by the Houses and the final version were neither

substantive nor material. In particular, no material or substantive differences had been identified in respect of: the title and

objectives pursued, the scope of the arrest warrant, the grounds upon which a State may decline to execute an arrest

warrant, the time limits for execution and surrender, the rights of a person whose surrender is sought, the rules governing

specialty and onward transmission of a surrendered person to a third State. In substance, the Minister submits, that,

although parliamentary scrutiny reservations were made by a number of Member States and the draft still had to be

submitted to the European Parliament for consultation, the documents before the Houses were in substance the same as the

Framework Decision ultimately adopted.

The legal and Constitutional Issues

Article 29 is the article of the Constitution which governs generally the activity of the State in its international relations. The

government is the organ of State charged with the exercise of that function. Article 29.4.1 provides:

“The executive power of the State in or in connection with its external relations shall in accordance with

Article 28 of this Constitution be exercised by or on the authority of the Government.”

Article 29, as successively amended on five occasions, has authorised the State to ratify the treaties adopted since Ireland’s

accession in 1973 to the European Economic Community, as it then was. The Eighteenth Amendment of the Constitution,

authorising ratification of the Amsterdam Treaty, constituted an innovation. Acting on foot of the first three amendments to

the Constitution, the Government participated, without prior parliamentary control, in the activities of the European

Communities and the European Union. Since the ratification of the Amsterdam Treaty of 1997 and Treaty of Nice of 2001,

the Constitution mandates prior parliamentary approval for the exercise by the State of certain powers contained in those

two treaties, described by the Constitution, in each case, as “options or discretions.”

The Houses of the Oireachtas, by means of prior approval, thus control the exercise by the Government of the executive

power it exercises as a participant in the activity of the European Union as a polity via the Council of Ministers and in its

relations with the governments of other Member States. A measure of parliamentary and, hence, democratic control of the

exercise of State power is thus assured. This objective is consonant with developing ideas and concerns about the need to

remedy a democratic deficit in the European institutions.

The exercise of that control in practice implicates relationships between political action, firstly, at the level of the Union, i.e.

in the Council, and, secondly, at national level, i.e. in the two houses of the National Parliament established under Article 15

of the Constitution. The present case also raises, in a particularly direct way, the question of the appropriate level of judicial

intervention in or scrutiny of those parliamentary procedures.

It is appropriate, in the first instance, to address the meaning of Article 29.4.6 of the Constitution, then to examine the

relationship of that provision with relevant articles of the Treaty on European Union and, finally, to consider the appropriate

level of judicial review or control of parliamentary action.

Article 29.4.6 requires prior approval for the exercise of the prescribed “options or discretions.” Two questions then arise.

The first is the meaning of the expression “options or discretions.” The second concerns the level of detail or precision of

the advance approval required. The latter is the matter which has been most debated in the present case.

As the Minister has argued, it is necessary to consider, in context, the relevant terms of Title VI of the Treaty on European

Union as amended by the Amsterdam Treaty. Neither the expression, “options nor discretions” nor either of its constituent

words, in the singular or the plural, occurs in the text of Title VI. It is clear that the expression cannot refer to the general

statement of objectives of the Union (Article 29) or to the general statements of what common action is to include (Articles

30 and 31). Article 34(1) provides:

“In the areas referred to in this Title, Member States shall inform and consult one another within the

Council with a view to coordinating their action. To that end, they shall establish collaboration between

the relevant departments of their administrations.”

That provision clearly does not create any option or discretion. It imposes an obligation. On the other hand, each of the

types of action which the Council is empowered to take, acting unanimously, and which are listed in Article 34(2) from (a)

to (d) is preceded by the word, “may,” indicating discretion. That list includes the discretionary power of the Council to

adopt framework decisions. Participation by the State in the adoption of the Framework Decision constituted the exercise by

it of an option or discretion and was the reason that the Minister rightly considered it necessary to move the resolutions of

the Dáil and Seanad which were passed on 12th December 2001.

Next, it must be considered whether the Houses of the Oireachtas were, as a matter of strict principle, required to give prior

approval of the exact text of the measure which was ultimately adopted. The Houses gave prior approval for the exercise of

an option or discretion. The option or discretion as expressed in Article 34(2)(b) of Title VI is conferred on the Council

acting unanimously. Thus, the resolutions approved in advance the State’s participation, with other Member States in

Council, in the adoption of the Framework Decision. That participation must be regarded as a process, to which it is intrinsic

and inevitable that texts originally proposed will, through discussion and negotiation, undergo change and amendment.

Change of texts is inherent in the process of lawmaking. The Houses of the Oireachtas are composed of parliamentary

representatives of the people and will have been assumed by the framers of the constitutional amendment to be conscious of

that fact of political life. As the Minister has pointed out, the constitutional text does not mention any particular text. Article

29.4.6 does not require prior approval of the exact text adopted.

It follows that the first submission made on behalf of the appellants fails.

That does not, however, conclude the matter. Compliance with the requirements of Article 29.4.6 represents an important

constitutional check on the exercise of State power. As the Court has already emphasised, it introduces a measure of

parliamentary control over the actions of the executive, which cannot, therefore, be ignored.

The Court is satisfied, in particular, that the participation by the executive arm of the State in the adoption by the Council of

a framework decision or other measure mentioned in Article 34(2) of Title VI without complying with its provisions would

represent defiance of a mandatory constitutional requirement. Any act of the Oireachtas enacted for the purpose of

implementing the measure would constitute an attempt to validate unconstitutional action by the executive. For that reason,

any such enactment would be repugnant to the Constitution and invalid. The same result would appear to follow if the prior

parliamentary approval were expressly and strictly limited to the adoption of a specified text.

Nonetheless, Article 29.4.6 constitutes a parliamentary and, in practice political, and not a legal control over government

action. It is for the members of the Houses of the Oireachtas to decide on the degree of authority they wish to confer on the

executive to participate in the adoption of measures pursuant to Title VI. It is they also who must judge retrospectively

whether their mandate has been observed, when called on to enact implementing legislation. They should be permitted to

judge whether the measure adopted comes within the scope of the prior approval. That will be a matter of degree.

In the present case, the Houses of the Oireachtas had before them on 11th and 12th December 2001 a document describing

itself as a draft Framework Decision and as a Proposal for a Council Framework Decision.

A significant number of small changes of a drafting type were made before the final version was adopted. None of these, as

the Minister has submitted, affected the essential scheme of the proposal. There are no significant alterations to the

objectives pursued, the scope of the arrest warrant, the grounds upon which a State may decline to execute an arrest

warrant, the time limits for execution and surrender, the rights of a person whose surrender is sought, the rules governing

specialty and onward transmission of a surrendered person to a third State.

Three particular changes have been highlighted by the appellants. The list of offences concerned with counterfeiting was

extended to cover all currency, not simply the Euro. The item listed in Article 2 as “trafficking in stolen vehicles” was

originally described as “motor vehicle crime.” Taking the offence of counterfeiting, the effect of the change is that

counterfeiting currencies other than the Euro is not to include in the Framework Decision an offence which would not

otherwise be covered, but to dispense from the requirement of double criminality. Under Article 1.1, any offence is covered

which is punishable by at least twelve months imprisonment and comes within the scope of the Framework Decision. Article

1.4 permits Member States to require double criminality to be established, except in the case of those offences listed in

Article 2.2.

Gibraltar, not having been mentioned in the draft, Article 33(2) provided that the Framework Decision was to “apply to

Gibraltar.” Article 299 of the Treaty establishing the European Community provides that the Treaty applies to “the

European territories for whose external relations a Member State is responsible.” In Case C-298/81 Gibraltar v Council

[1993] ECR I-3605, Advocate General Lenz, interpreting that provision (previously numbered 227(4)) expressed the view

that in “Community law,……Gibraltar is regarded as a European territory………for whose external relations a Member

State (in this case, the United Kingdom) is responsible.” The Court did not deal with that point. The Treaty on European

Union contains no provision corresponding to Article 299EC. Thus, whether that Treaty applies to Gibraltar is, at best,

obscure.

The Court considers that, in the first instance, it is a matter for the Oireachtas, when called upon to enact implementing

legislation, to evaluate any differences between the authority conferred by a resolution granting prior approval pursuant to

Article 29.4.6 and the measure in whose adoption the State has participated pursuant to Article 34 TEU. The Houses of the

Oireachtas constitute the National Parliament established under Article 15 of the Constitution. Article 29.4.6 confers on

them exclusively the function of deciding whether to approve in advance the participation by the State in the adoption of

specified European Union acts. Equally, it is in those Houses, together with the President, that resides the “sole and

exclusive power of making laws for the State.”

In Curtin v Dáil Eireann, cited above, this Court noted at page 627 that “the Houses of the Oireachtas have the exclusive

power to consider the passing of resolutions for the removal of a judge from office,” pursuant to Article 35.4.1 of the

Constitution. The Court considered a number of authorities establishing the presumption of constitutionality accorded to

legislation generally (Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R. 413; Buckley and others (Sinn Féin) v.

Attorney General and Another [1950] I.R. 67; McDonald v. Bord na gCon [1965] I.R. 217 at p. 239; East Donegal Co-

Operative Livestock Mart Ltd v. Attorney General [1970] I.R. 317); and resolutions of both Houses of the Oireachtas (

Goodman International Ltd. v. Mr. Justice Hamilton [1992] 2 I.R. 542). The Court concluded that “the courts must, in

accordance with the principle of the separation of powers, exercise a significant level of judicial restraint when

considering the exercise of that power.”

The Court addressed, at page 627, the need to “identify a standard by which the court can measure whether a designated

organ of government is falling or is likely to fall short of its constitutional obligations.” The Court cited the judgment of

Murray J., as he then was, in T.D. v Minister for Education [2001] 4 I.R. 259 at p. 337:

"I have already made the distinction between 'interfering' in the actions of other organs of State in order

to ensure compliance with the Constitution and taking over their core functions so that they are

exercised by the courts. For example, a mandatory order directing the executive to fulfill a legal

obligation (without specifying the means or policy to be used in fulfilling the obligation) in lieu of a

declaratory order as to the nature of its obligations could only be granted, if at all, in exceptional

circumstances where an organ or agency of the State had disregarded its constitutional obligations in an

exemplary fashion. In my view the phrase 'clear disregard' can only be understood to mean a conscious

and deliberate decision by the organ of state to act in breach of its constitutional obligation to other

parties, accompanied by bad faith or recklessness."

The Court, in Curtin, proceeded to apply the standard of “clear disregard” to the resolutions of the Houses of the

Oireachtas proposing the removal of a judge from office in the following passage:

“The standard of "clear disregard" was used, in that case, in the somewhat different context of an order

directed to the government to make provision for certain disadvantaged children. The legal basis for the

adoption of this standard was, however, the fact that the matters at issue fell primarily within the

executive province of government. The standard should also be applied, in the opinion of the court to the

performance of the exceptional and sensitive function constitutionally assigned to one organ of

government, the legislature, of removing of judges from office. It accords with the presumption of

constitutionality.”

In the particular case, the plaintiff complained that the impugned resolutions proposed the establishment of a joint committee

of the Houses of the Oireachtas with powers of investigation. The Court ruled as follows:

“Ultimately, this court could conclude that this provision was beyond the power of the Houses only if it

was clear that it would be, recalling the dictum of Murray J., cited above, in "clear disregard" of the

right of the applicant to the benefits of basic fairness of procedures and constitutional justice.”

Although the Curtin case was concerned with a quite different and very special power conferred exclusively on the Houses

of the Oireachtas, the Court considers that the standard required to merit judicial intervention in parliamentary procedures,

which it there laid down should be applied to the matters before the Court in the present case.

The Act of 2003 benefits, in any event, from the normal presumption of constitutionality. The resolutions of the Houses

passed on 12th December 2001 benefit from the same presumption. It is the combined effect of the two actions which is at

issue in the present case: in essence the implicit decision of the Oireachtas, at the time of enactment of the legislation, that it

was satisfied that the terms of the Framework Decision fell within the scope of the prior approval comprised in the

resolutions.

It follows from the fact that the resolutions of 12th December approved a draft proposal for a Framework Decision that the

Houses approved any reasonable and usual drafting changes, amendments to improve and clarify the document. The

question is whether the three changes mentioned constituted such significant departure from the approved text as to warrant

the conclusion that the constitutionally necessary prior approval had not been given. The matter should be judged from the

perspective of parliamentary bodies exercising parliamentary judgment and not from the point of view of hypothetical

individuals who may be more or less affected by the enacted measure than they would have been in the terms of the draft.

Looked at from that point of view, neither the change from “trafficking in stolen vehicles” to “motor vehicle crime” nor the

inclusion of offences, which would have been covered by the Framework Decision in any event, in the list of offences for

which Article 2.2 dispenses with the requirement of double criminality is, in the view of the Court, significant. The express

application of the Framework Decision to Gibraltar, a territory for whose external relations, one Member State is responsible

could not, in the view of the Court be regarded as an important change. It is patently wrong to suggest that acceptance of

the inclusion of Gibraltar would imply the possibility of extension to countries throughout the wprld. The “area of freedom,

security and justice” described in Article 29 is obviously confined to the Member States of the Union. Part of the legal basis

for the adoption of the Framework Decision is Article 31(1)(b) which envisages “facilitating extradition between Member

States.” In none of these cases could it be said that the Oireachtas or the Houses of the Oireachtas acted in clear disregard

to Article 29.4.6 of the Constitution.

For these reasons, the Court is satisfied that the challenge to the constitutionality of the European Arrest Warrant Act 2003

is not well founded. The Court will order that the appeal be dismissed.