Supreme Court of Ireland Decisions

1. This is a case stated by Barrington J pursuant to Article 40.4.3.° of the Constitution for the opinion of the Supreme Court as to whether a law consisting of the Extradition Act 1965 (Part II) (No. 20) Order 1984 being S.I. No.300 of 1984 is invalid having regard to the provisions of Article 29.5.2° of the Constitution by reason of the fact that the terms of the Treaty on Extradition between Ireland and the United States of America were not approved by Dáil Éireann.

2. Certain preliminary issues arise which it is necessary for the members of this Court to decide before considering the question raised in the case stated. They are:

3. The facts and statutory provisions relevant to the determination of these issues are as follows:

4. The applicant was at the time of his application to Barrington J for an inquiry under Article 40 of the Constitution as to the legality of his detention, detained in pursuance of an order made by the District Court under, s. 29 of the Extradition Act 1965. That order was made on an assumption that Part II of the Act of 1965 applied to the United States of America which was the requesting country. A Treaty of Extradition between Ireland and the United States was signed subject to ratification on behalf of both Governments on 13 July 1983. I t was subsequently ratified on behalf of Ireland by the Minister of Foreign Affairs on 14 November 1984 and was also duly ratified on behalf of the United States of America.

5. The Government, on 20 November 1984, in exercise of the powers conferred on them by s. 8 of the Extradition Act 1965, having recited the making and ratification of that Treaty, applied Part II of the Extradition Act 1965 in relation to the United States of America.

6. S. 9 of the Act of 1965 provides as follows:

7. Where a country in relation to which this Part applies, duly requests the surrender of a person who has been proceeded against in that country for an offence or who is wanted by that country for the carrying out of a sentence, that person shall, subject to and in accordance with the provisions of this Part, be surrendered to that country.

8. The Treaty was laid before Dáil Éireann and Seanad Éireann but no resolution was passed by Dáil Éireann approving of its terms.

9. The decision of Barrington J leading to the stating by him of the case under Article 40.4.3° was that the Treaty was an international agreement involving a charge upon public funds within the meaning of Article 29.5.2° of the Constitution and that its terms not having been approved by Dáil Éireann it did not accordingly bind the State. He held that as a consequence the order made by the Government was invalid having regard to the provisions of the Constitution, in that it purported by applying the provisions of the Act of 1965 and, in particular, ss. 8 and 9 thereof, to the United States of America to bind the State with the Treaty.

10. The provisions of Article 40.4.3° are as follows:

11. Where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf made under this section and that Court is satisfied that such person is being detained in accordance with a law but that such law is invalid having regard to the provisions of this Constitution, the High Court shall refer the question of the validity of such law to the Supreme Court by way of Case Stated and may, at the time of such reference or at any time thereafter, allow the said person to be at liberty on such bail and subject to such conditions as the High Court shall fix until the Supreme Court has determined the question so referred to it.

12. S. 8( l)of the Act of 1965 which is at the commencement of Part II of the Act, provides as follows:

13. Where by any international agreement or convention to which the State is a party an arrangement (in this Act referred to as an Extradition Agreement) is made with another country for the surrender by each country to the other of persons wanted for prosecution or punishment or where the Government are satisfied that reciprocal facilities to that effect will be afforded by another country, the Government may by order apply this Part in relation to that country.

14. The remainder of Part II of the Act, consisting of thirty-two further sections, constitutes a complete and comprehensive code for the extradition of persons from the State.

15. By virtue of s. 4 of the Act of 1965 every order made by the Government under the Act, including, of course, orders made by the Government under s. 8 of the Act, must be laid before each House of the Oireachtas as soon as may be after it is made and may be annulled by a resolution passed by either House within the next 21 days on which that House has sat after the order is laid before it.

16. The provisions of Article 40.4.3° of the Constitution were considered by this Court in The State ( Sheerin) v Kennedy [ 1966] IR 379. In that case a judge of the High Court had stated a case on the hearing of an application for habeas corpus to the Supreme Court as to the validity having regard to the provisions of the Constitution of s. 2 of the Prevention of Crime Act 1908.

17. The issue which fell to be decided by this Court in that case accordingly was as to whether a statute passed by the Parliament of the former United Kingdom of Great Britain and Ireland which was in force at the time of the enactment of the Constitution and was carried forward pursuant to Article 50 to the extent that it was no inconsistent with the provisions of the Constitution was a law within Article 40.4.3°. The decision of this Court was that it was not. In reaching that decision the judgment, which was the unanimous judgment of the court, was delivered by Walsh J and states in conclusion on this aspect of the case that Article 40.4.3° applied only to Jaws enacted by the Oireachtas.

18. The question as to whether legislation in the form and of the type with which we are concerned in this ease was a law within Article 40.4.3° did not arise in The State (Sheerin) v Kennedy [1965] I.R. 379 nor was any reference made either in argument or in the judgment to that situation. In so far, therefore, as the judgment might be interpreted as absolutely confirming Article 40.4.3° to statutes enacted by the Oireachtas, it would be obiter and for the reasons which I am about to outline, I would not be disposed to follow it.

19. The legislative scheme of the Act of 1965 is straightforward and clear. The Oireachtas enacted in great detail the provisions which would apply to extradition and then presumably anticipating the likelihood that from time to time by reason either of agreements or by reason of the existence of reciprocal arrangements, the Act would become applicable to various other States, instead of the necessity for a separate new statute on each occasion, applying the Act of 1965 to each successive State to make such arrangements, empowered the Government to do so by order, retaining to each House of the Oireachtas the power to annul that order.

20. The applicant at the time of his application to the High Court was detained pursuant to an order made by the District Court under s. 29 of the Act of 1965 on the assumption that the Government order made that sanction applicable to him.

21. It seems to me that the law in accordance with which the applicant was detained within the meaning of Article 40.4.3° is a combination of s. 29 of the Act of 1965 and the Government order applying Part II of the Act to the United States of America.

22. As is stated in the judgment in The State (Sheerin) v Kennedy , this Article of the Constitution was introduced by amendment at a time when the decision of the former Supreme Court was to the effect that there was no appeal by the respondent against an order of habeas corpus.

23. The form of procedure provided by it, however, must in my view, be taken to have had the intention of ensuring that a person should not finally be discharged from custody authorised by the legislative provisions of the Oireachtas until a final decision with regard to the validity, having regard to the Constitution, of those legislative provisions had been made by this Court. It would appear, therefore, logical that the Article and the procedure created by it should apply not only to the statutory provision expressly enacted by the Oireachtas in this case, namely, the Extradition Act 1965, but also to the machinery expressly created in that Act for the application of Part II of it by Government order.

24. I am, therefore, satisfied that the order made by the Government in this case is a law within Article 40.4.3° and that this Court has jurisdiction to answer the question raised in the case stated to it.

25. With regard to the second issue, the position appears to me clear. The matter which is referred, under Article 40.4.3° for the determination of the Supreme Court is the ‘validity of such law’. The decision of this Court on the case stated must inevitably be a decision on a question as to the validity of a law, having regard to the provisions of the Constitution and, as such, must be captured by the provisions of Article 34.4.5° which provides that the decision of the Supreme Court on a question as to the validity of a law, having regard to the provisions of this Constitution, shall be pronounced by such one of the judges of that court as that court shall direct, and no other opinion on such question, whether assenting or dissenting, shall be pronounced, nor shall the existence of any such other opinion be disclosed.

26. I am, therefore, satisfied that the answer to the case stated to be given by this Court must be given as a single judgment.

27. I intend to deal only with the single issue whether SI No. 300 of 1984 referred to in the case stated by the High Court is a ‘law’ within the meaning of Article 40.4.3° so as to give jurisdiction to the High Court judge to state the case to this Court.

28. Article. 40 of the Constitution deals with personal rights. By Article 40.3.1°, ‘The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen’. Article 40.4.1°, states ‘No citizen shall be deprived of his personal liberty save in accordance with law’. Article 40.4.2° provides for a complaint to any judge of the High Court by a person claiming that he or she is being unlawfully detained, and directing an enquiry into the complaint, giving the person in whose custody he is detained, an opportunity to justify the detention, and to order the release of such person from such detention unless satisfied that he is being detained in accordance with the law. Article 40.4.3° states:

29. Where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf made under this section and that Court is satisfied that such person is being detained in accordance with a law but that such law is invalid having regard to the provisions of this Constitution, the High Court shall refer the question of the validity of such law to the Supreme Court by way of Case Stated and may, at the time of such reference, or at any time thereafter, allow the said person to be at liberty on such bail and subject to such conditions as the High Court shall fix until the Supreme Court has determined the question so referred to it.

30. Article 40.4.1° guarantees the right to personal liberty save ‘in accordance with law’. Law in the context of this sub-article comprises the whole body of law which includes statutory law, judicial decisions, and administrative rules and regulations, Unless the High Court is satisfied that the complainant is being detained in accordance with ‘the law’ it will order the release of such person from such detention. In this context the law has the same scope as ‘law’ in subsection 1 to which I have already referred. However, under Article 40.4.3°, the High Court can state a case to the Supreme Court when it is satisfied that such person ‘ ...is being detained in accordance with a law but that such law is invalid having regard to the provisions of the Constitution...’.

31. Under Article 15.2.1°, ‘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’. In Article 15.2.2°, ‘Provisions may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislations’. The provision in this sub-article is for subordinate legislatures and not what is commonly, but in my view erroneously referred to as ‘subordinate legislation’. Article 15.3.1° and 2, further clarify this distinction. In accordance with Article 15.4.1° ‘The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof.’ And under Article 15.4.2°, ‘Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.’

32. I am satisfied that on a true construction of the Constitution and in particular, Article 15 therof, the High Court can only refer a case stated under Article 40.4.3° to the Supreme Court regarding a law passed by the Oireachtas under Article 15 of the Constitution and is precluded from stating a case on the validity of any other form of law. In the judgment of Hanna J in Pigs Marketing Board v Donnelly (Dublin) Ltd [1939] IR 413:

33. It is axiomatic that powers conferred upon the Legislature to make laws cannot be delegated to any other body or authority. The Oireachtas is the only constitutional agency by which laws can be made. But the Legislature may, it has always been conceded, delegate to subordinate bodies or departments not only the making of administrative rules and regulations, but the power to exercise, within the principles laid down by the Legislature, the powers so delegated and the manner in which the statutory provisions shall be carried out. The functions of every Government are no so numerous and complex that of necessity a wider sphere has been recognised for subordinate agencies, such as boards and commissions. This has been specially so in this State in matters of industry and commerce. Such bodies are not law makers; they put into execution the law as made by the governing authority and strictly in pursuance therewith, so as to bring about, not their own views, but the result directed by the Government. (at p. 421)

34. I adopt this statement of the law and would merely emphasise that the powers conferred upon the Legislature to make laws cannot be delegated to the Government or any member of the Government. The Statutory Instrument in this case made by the Government is like any other Statutory instrument or statutory order made pursuant to ‘a law’ already enacted by the Oireachtas. It is not in itself a law within the meaning of Article 40.4.3° but simply an instrument to give effect to a law already enacted.

35. In my view the proper manner of testing the issue in the present case would have been to come to this Court by the ordinary type of appeal if either party was dissatisfied with the High Court judge's adjudication.

36. For these reasons I am of opinion that the High Court Judge in the instant case did not have jurisdiction to state the case to the Supreme Court.

37. Article 40.4.2° of the Constitution requires the High Court to order the release of any person in custody ‘unless satisfied that he is being detained in accordance with the law’. There was no material difference between this subsection and the one it replaced, when this and the succeeding three subsections were enacted as part of the Constitution during the transitional period prescribed by Article 51. ‘The law’ in the last line of subsection 2 must comprise the general body of the law, whatever its origin. So also ‘law’ in Article 40.4.1°. Article 50.1 provides for the continuance in operation of ‘the laws’ in force in Saorstát Éireann ‘until the same or any of them shall have been repealed or amended by enactment of the Oireachtas’. In The State (Sheerin) v Kennedy [1966] IR 379 Walsh J, with whose judgment Ó Dálaigh CJ and Lavery, Haugh and O’Keeffe JJ agreed held that Article 40.4.3° did not apply to the Prevention of Crime Act 1908, it not being an Act of the Oireachtas. In The State (Brown) v Feran [1967] IR 147 , Walsh J with whose judgment Ó Dálaigh CJ and Haugh, Budd and FitzGerald JJ agreed, stated:

38. It is a matter of history that Article 40.4.3° of the Constitution was enacted as an amendment to the Constitution in consequence of the decision in The State (Burke) v Lennon [1940] IR 136. That, however, is no reason for changing the opinion I have already expressed on the true construction of Article 34.4.3°. My opinion does not create a duplication or an inconsistency in appeals in habeas corpus cases. Article 40.4.3° is confined specifically to cases where the High Court is satisfied that a person is detained in accordance with a law enacted since the 27th December 1937- see the decision of this Court in The State (Sheerin) v Kennedy and that such law is invalid having regard to the provisions of the Constitution. Article 34.4.3° (as controlled by sub-section 4), unlike Article 40.4.3° is not so confined and may embrace any other case of habeas corpus , including cases which involve questions of the validity of any law having regard to the provisions of the Constitution unless the High Court is satisfied that the detention complained of is in accordance with such law but that such law is invalid having regard to the provisions of the Constitution. In the latter event only does Article 40.4.3° become operative. In those circumstances the case does not fall to be determined under Article 40..4.2°, and the right to release from the detention under that subsection becomes dependant upon the operation of subsection 3. Those circumstances also determine the nature of the jurisdiction of this Court by substituting a consultative case stated, for the ordinary appellate jurisdiction conferred by Article 34.4.3°, in respect of the validity of the law in accordance with which the person is detained but not in respect of any other matters decided in the High Court in the same case, including the question of the validity of any other law.' (at p. 168)

39. The sole and exclusive power of making laws for the State is vested in the Oireachtas (Article 15.2.1°) with the provision for the creation or recognition of subordinate legislatures (Article 15.2.2°). The latter power does not appear ever to have been exercised (see Kelly The Irish Constitution 2nd ed. p. 81). In Cityview Press v An Chomhairle Oiliúna [1980] IR 381 this Court said (per O'Higgins CJ):

40. Nevertheless, the ultimate responsibility rests with the Courts to ensure that constitutional safeguards remain, and that exclusive authority of the National Parliament in the field of law-making is not eroded by a delegation of power which is neither contemplated not permitted by the Constitution. In discharging that responsibility, the Courts will have regard to where and by what authority the law in question purports to have been made. In the view of this Court, the test is 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 sounder 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. (at p. 399)

41. The presumption of constitutionality which attaches to every Act of the Oireachtas derives from Article 15.4.1° of the Constitution which precludes the Oireachtas from enacting any law which is in any respect repugnant to the Constitution or any provision thereof; no such presumption can attach to a statutory instrument, yet it is maniffest, as the Chief Justice has already indicated, that if the issue raised in the case stated does concern the validity of a law within the meaning of Article 40.4.3°, it must come within the restriction prescribed by Article 34.4.5° - the one judgment rule - and thereby enjoy a cachet denied, for example, to Acts of the then Oireachtas between 1922 and 1937. In Quinn’s Supermarket Ltd v Attorney General [1972] IR 1 this Court condemned as constitutionally invalid certain provisions of the Victuallers’ Shops (Hours of Trading on Weekdays) (Dublin, Dun Laoghaire and Bray) Order, 1948 made by the Minister for Industry and Commerce in purported exercise of the powers vested in him by s. 25 of the Shops (Hours of Trading) Act 1938. Each member of the court (Ó Dálaigh CJ and Walsh, Budd, FitzGerald and Kenny JJ) expressed his separate opinion, Walsh and Kenny JJ delivering reasoned judgments, in which Kenny J dissented from the views of his colleagues.

42. The preliminary issue as to whether or not it was within the relevant provisions of Article 40 to state a case in the instant matter does not appear to have been argued in any depth in the High Court no more than it was in this Court. A most important principle, is however, involved and I feel bound to express my view. In the instant case, the prosecutor is not in true custody; he has been, since shortly after his arrest, and continues to be on bail. One can, however, readily envisage this same issue of a case stated from the High Court arising in a variety of other cases, in particular, where penal statutes or part thereof are brought into force by ministerial order. The wide ranging powers, for example of the Criminal Justice Act 1984 are activated by an order or orders of the Minister for Justice either generally or with reference to any particular purpose or provision. It may be that the validity of such an order will be challenged on constitutional grounds and the challenge upheld in the High Court. In such a case where the High Court is satisfied that the detention is invalid is the High Court, nonetheless, effectively to sanction, if not detention, certainly significant restrictions on liberty, until such time as this Court has applied the constitutional template to such an order? (The reference in this case was ordered by Barrington J on 7 October 1985). I think not. The limitation imposed by subsection 3 on the right to immediate release must, in my judgment, be given a meaning restricted to its historical base which was a judicial decision on the constitutional validity of an Act of the Oireachtas. (See the passage from the judgment of Walsh J which I have cited). Admittedly, in Quinn’s Supermarket, there was no detention and the issue here raised would have been somewhat peripheral; nonetheless, I cannot accept that the court as then constituted was not alive to the constitutional obligation of a single judgment in any case involving the validity of a law having regard to the provisions of the Constitution (Article 34.4.5°). If the Government order here is reviewable under Article 40.4.3°, then the several judgments delivered in Quinn’s Supermarket appear to have been in conflict with the requirement of a single judgment.

43. In my view, neither a statutory instrument not any other form of order made by the executive or any part of it enjoys the status conferred by Article 40.4.3° or the cachet given by Article 34.4.5°.

44. I would decline to entertain the case stated.

45. This is a case stated by Barrington J pursuant to Article 40.4.3° of the Constitution for the opinion of the Supreme Court as\ to whether a law, namely, the Extradition Act 1965, (Part II) (No.20) Order 1984 (being SI No.300 of 1984) is invalid having regard to the provisions of Article 29.5.2° of the Constitution by reason of the fact that the terms of the Treaty on Extradition between Ireland and the United States of America (which is the subject matter of the order) were not approved by Dáil Éireann.

46. The applicant was at the time of his application to Barrington J for an enquiry under Article 40 of the Constitution as to the legality of his detention detained in pursuance of an order made by the District Court under s. 20 of the Extradition Act 1965.

47. That order was made on the assumption that SI No.300 of 1984 being an order made by the Government pursuant to s. 8 of the Act of 1965 validly applied Part II of that Act to the United States of America, on the grounds that the State was a party to an extradition agreement made with the United States of America, which was the requesting country.

48. A Treaty of Extradition between Ireland and the United States was signed subject to ratification on behalf of both Governments on 13 July 1983. It was subsequently ratified on behalf of Ireland by the Minister for Foreign Affairs on 14 November 1984 and was also duly ratified on behalf of the United States of America.

49. The Treaty was laid before Dáil Éireann and Seanad Éireann but no resolution was passed by Dáil Éireann approving of its terms.

50. The decision of Barrington J leading to the stating by him of the case under Article 40.4.3° was that the Treaty was an international agreement involving a charge upon public funds within the meaning of Article 29.5.2° of the Constitution and that its terms not having been approved by Dáil Éireann, it did not accordingly bind the State. He held that as a consequence the order made by the Government was invalid having regard to the provisions of the Constitution in that it purported to apply the provisions of the Act of 1965 to the United States thus enforcing the Treaty.

51. Article 29.4.1° provides as follows:

52. 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.

53. Article 29.5 provides as follows:

54. Neither of these sections of Article 29 has been previously interpreted or construed by any court. It would appear that s. 5 envisages three separate categories of international agreement, and they are:

55. The fact that Article 29.5.2° requires not that Dáil Éireann should approve of the extent or nature of the charge upon public funds, but rather that it should approve of the terms of the agreement leads to the conclusion that in the crucial question of interpreting what is an international agreement involving a charge upon public funds one should look first to the requirement that it be the terms of the agreement itself which involves such a charge.

56. In other words, purely incidental or consequential expenses which may fall on some of the organs of the State by reason of the adherence of the State to an international agreement but which are not created by one or other of the terms of that agreement itself, would make such agreement fit into the category of international agreements which shall be laid before Dáil Éireann (provided that they are not merely administrative or technical) but not within the category of those the terms of which require approval from Dáil Éireann.

57. Having regard to that view, the material articles of the Treaty of Extradition between the State and the United States of America are Articles XVI and XVII. Subsection 2 of Article XVI states as follows:

58. The Attorney General of Ireland shall advise and assist, and represent, or provide for he representation of, the interests of the United States in any proceedings in Ireland arising out of a request for extradition made by the United States.

59. The court does not consider that this provision necessarily involves a charge upon public funds. In its terms it does not seek to impose such a charge, but imposes instead an obligation on a constitutional officer, namely, the Attorney General, to advise and assist and represent or provide for the representation of the interests of the United States in connection with extradition.

60. Article XVII, however, which is headed 'Expenses' provides as follows:

61. In the Opinion of the Court both sections of this Article involve a charge upon public funds. In the event of the State being the Requesting State it has by s. 1 entered into a binding commitment to the United States of America to bear certain expenses, that is to say, the expense of the translation of documents and the transportation of the person from the place of the extradition proceedings to the Requesting State. Such expenses must be borne out of public funds and the right of the United States to call upon this State to pay them arises by the direct and express terms contained in s. 1.

62. Equally, in the case where, as occurs in the instant application, the State is the Requested State, s. 2 of Article XVII clearly envisages necessary expenditure by the Requested State arising out of the arrest, detention and extradition proceedings and surrender of the person being sought and provides an exoneration or indemnity to the other party to the agreement, the United States, in respect of that expenditure, which, were it not for that provision, could presumably be claimed against the United States.

63. The court, therefore, decides that both sections of Article XVII constitute terms of this agreement which involve a charge upon public funds, and, that being so, the State is not bound by the agreement unless and until its terms have been approved by Dáil Éireann.

64. The court will therefore answer the question raised in the case stated by declaring that SI No.300 of 1984 is invalid having regard to the provisions of Article 29.5.2° by reason of the fact that the terms of the Treaty on Extradition between Ireland and the United States of America were not approved by Dáil Éireann.