Judgment Title: Minister for Justice Equality and Law Reform -v- Puta
Composition of Court: Murray C.J., Hardiman J., Geoghegan J., Fennelly J., Finnegan J.
Judgment by: Murray C.J.
Status of Judgment: Approved
Notes on Memo: (On Constitutional Issues) Judgment of the Court delivered by Murray C.J.
THE SUPREME COURT
Record No: 277/2007, 238/07, 237/07
BETWEEN: MOHAMMED IQBAL
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE ATTORNEY GENERAL
BETWEEN: MAROŠ ŠULEJ.
THE ATTORNEY GENERAL
THE MINISTER FOR JUSTICE,
EQUALITY AND LAW REFORM
THE ATTORNEY GENERAL
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:
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:
Article 29.4.6 provides:
Article 34 TEU reads as follows:
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……..
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:
(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.”
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:
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:
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.
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.
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  2 IR 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  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:
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 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:
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  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.  I.R. 413; Buckley and others (Sinn Féin) v. Attorney General and Another  I.R. 67; McDonald v. Bord na gCon  I.R. 217 at p. 239; East Donegal Co-Operative Livestock Mart Ltd v. Attorney General  I.R. 317); and resolutions of both Houses of the Oireachtas ( Goodman International Ltd. v. Mr. Justice Hamilton  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  4 IR 259 at p. 337:
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 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.