Supreme Court of Ireland Decisions

1. This is an appeal by the Respondents (hereinafter referred to as the State) against the decision of the High Court, Mr. Justice Geoghegan, delivered on the 22nd January, 1999. The Learned High Court Judge granted a declaration that Section 5 (l)(e) of the Aliens Act, 1935 was not carried over by Article 50 of the Constitution of Ireland, was inconsistent with. Article 15.2 of the Constitution of Ireland and does not form part of Irish law. The Learned High Court Judge also made consequential declarations that Article 13 (1) of the Aliens Order, 1946 and the Deportation Order regarding the Applicant/Respondent in this case were invalid.

2. The case turns on the issue as to whether the legislature could, in the terms of Section 5(1)(e) of the Aliens Act, 1935 delegate to the Minister the power to deport aliens, or whether it is an impermissible delegation of legislative power contrary to Article 15.2.1 of the Constitution of Ireland.

3. Mr. John Finlay, S.C., on behalf of the State, submitted that s.5(1)(e) of the Miens Act, 1935 and Regulation 13 of the Aliens Order, 1946 are valid. He submitted that the right of the State to control the entry of aliens, their activity in the State and their departure, is part of the sovereign rights of the State. The exercise of that control is primarily an executive and administrative function. The entitlement of aliens is dependent on the consent of the appropriate authority. If that consent is refused or withdrawn the alien has no right to stay in the State. He submitted that what the Minister did was within the four corners of the Aliens Act, 1935. He submitted that the policy of the Act is clear: aliens are only allowed into the State and to remain in the State with the permission of the Minister for Justice. The relevant

4. Mr. Gerard Hogan, S.C., Counsel for the Applicant, submitted that s.5(1)(e) of the Aliens Act, 1935 gave excessive legislative powers to the Minister for Justice in that it effectively left the Minister at large insofar as the making of a Ministerial Order was concerned and it did not set out principles and policies upon which deportation orders were to be made; consequently, it did not survive the enactment of the Constitution. Further, he submitted that Article 13 of the Aliens Order, 1946 is a form of legislation outside the powers of legitimate delegation and contrary to Article 15.2.1 of the Constitution of Ireland. In oral argument he considered that there were three issues for the Court:

5. The relevant constitutional articles are:

6. The statutory scheme is the Aliens Act, 1935 (No. 14 of 1935) hereinafter referred to as ‘the Act’. The long title of the Act described it as:

7. The term ‘alien’ was defined as meaning:

8. As a consequence of that legislation the Minister for Justice enacted the Aliens Order , 1946, (5 .R. & 0. 395 of 1946). Regulation 13 thereof stated:

9. There has been significant case law on Article 15.2.1 of the Constitution. The first important analysis was in Pigs Marketing Board v. Donnelly (Dublin), Ltd. [1939] 1 IR 413. In that case Hanna J. stated at p.421:

10. Here, in effect, is the beginning of the principles and policies test. In this case it was alleged that the Pigs and Bacon Acts, 1935 and 1937 were unconstitutional under Article 12 of the 1922 Constitution whereby the legislature was given exclusive power to make laws and also unconstitutional under Article 15 of the Constitution of Ireland, 1937.

11. The first modem statement of a principles and policy test was in Cityview Press Limited v. An Chomhairle Oiliúna [1980] 1 IR 381 where at pp. 398-399 O’Higgins C.J. stated:

12. This important case was itself based on a situation where, as McMahon J. stated in the High Court,

13. The principles and policies test continued to be applied. Thus, in The State (Gilliland) v. The Governor of Mountjoy Prison [1987] IR 201 Barrington J., having referred to the Cityview.Press case, stated at p.222:

14. The Learned Judge applied the principles and policies test to the relevant Act. However, the decision as to whether Ireland should enter into an extradition treaty with a particular country and the incorporation of additional safeguards, if any, was left to the Government. It is of relevance to this case to note that the function in issue - to determine whether an extradition treaty should be entered into with a particular country - is a classic example of an executive function. The legislature did not impinge on the executive function. The legislature did not delegate the power to a Minister. The executive, Government, proceeds with its function.

15. Mr. Justice Geoghegan found the above reasoning very helpful.

16. The Courts have held this type of delegated legislation to be unconstitutional, even if it does not create a new principle. This type of delegated legislation is not in issue in this case. Finlay C.J. set out at pp. 240-241 a methodology. He stated:

17. This methodology applies the presumption of constitutional validity: the rule of construction that where there are two or more reasonable constructions that which is constitutional will prevail. Specifically, it must be implied that the making of delegated legislation by the Minister is intended by the legislature to be in accordance with constitutional justice. It may be summarised by inquiring if the impugned regulation makes it necessary or inevitable that the Minister making regulations pursuant to the power must invade the power of the legislature contrary to Article 15.2. This ‘necessary or inevitable’ test is apt in construing Henry VIII clauses, which was the issue in Harvey v. The Minister for Social Welfare .

18. The Oireachtas is no longer the sole and exclusive legislature for the State. European Union Law applies directly to Ireland and membership necessitates certain legislation in Ireland. 5.3(2) of the European Communities Act, 1972 enables Ministers by regulation to implement the law. It was held in Meagher v. The Minister for Agriculture [1994] 1 IR 329

19. Thus even where, as in this case, the regulation amended a statute it was not a breach of Article 15.2 because it did not determine principles or policies - rather those principles and policies had been determined in the relevant Council directives, which are binding as to the results to be achieved.

20. This analysis is of interest to the Henry VIII type clause - but is tangential to this case. However, it does show the strength of the principles and policies test in our jurisprudence.

21. Counsel referred to comparative case law. Cases of the United States of America appear to have exercised an influence on the decision in Pigs Marketing Board v. Donnelly (Dublin), Ltd . It is of importance to note that there is not a great body of jurisprudence in the United States on this aspect of constitutional law.

22. “The Constitution provides that “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Art.I, § 1. And the Congress is empowered “To make all laws which shall be necessary and proper for carrying into execution” its general powers. Art.I, § 8, par. 18. The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is thus vested. Undoubtedly legislation must often be adapted to complex conditions involving a host of details with which the national legislature cannot deal directly. The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply. Without capacity to give authorizations of that sort we should have the anomaly of a legislative power which in many circumstances calling for its exertion would be but a futility. But the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been

23. In concluding on this topic the Chief Justice stated at p.430:

24. In the same year in A.L.A. Schechter Poultry Corp. et al v. United States (1935) 295 U.S. 495 the Court stated at p.528:

25. The Court applied the test set out in Panama Refining Co. v. Ryan and looked to the statute to see if Congress had overstepped these limitations - whether it had itself established the standards of legal obligation, thus performing the essential legislative function or by failure to enact the standards had attempted to transfer the function to others. Whilst neither

26. Arising out of concern about sentencing disparities the U.S. Congress passed the Sentencing Reform Act, 1984 which established the United States Sentencing Commission as an independent body in the Judicial Branch with power to create binding sentencing guidelines establishing a range of determinate sentences for all categories of federal offences and defendants according to specific and detailed factors. In Mistretta v. United States (1989) 488 U.S. 361 the petitioner claimed that the Commission constituted a violation of the separation of powers principle and that Congress had delegated excessive authority to the Commission to structure the Guidelines. It was held that the Sentencing Guidelines were constitutional since Congress neither (1) delegated excessive legislative power to the Commission nor (2) violated the separation of powers principle by placing the Commission in the Judicial Branch, by requiring federal judges to serve on the Commission and to share their authority with non-judges or by empowering the President to appoint Commission members and to remove them for cause. On the delegation of power issue Justice Blackmun in delivering the opinion of the Court stated at p.371:

27. “The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government. The Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” U.S. Const., Art I. § 1, and we long have insisted that “the integrity and maintenance of the system of government ordained by the Constitution” mandate that Congress generally cannot delegate its legislative power to another Branch. Field v. Clark, 143 U.S. 649, 692 (1892). We also have recognized, however, that the separation-of-powers principle, and the nondelegation doctrine in particular, do not prevent Congress from obtaining the assistance of its coordinate Branches. In a passage now enshrined in our jurisprudence, Chief Justice Taft, writing for the Court, explained our approach to such cooperative ventures: “In determining what [Congress] may

28. Applying this “intelligible principle” test to congressional delegations, our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. See Opp Cotton Mills, Inc. v. Administrator, Wage and Hour Div. of Dept. of Labour, 312 U.S. 126, 145 (1941) (“In an increasingly complex society Congress obviously could not perform its functions if it were obliged to find all the facts subsidiary to the basic conclusions which support the defined legislative policy”); see also United States v. Robel, 389 U.S. 258, 274 (1967) (opinion concurring in result). “The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function.” Panama Refining Co. v. Ryan, 293 U.S. 388, 421(1935). Accordingly, this Court has deemed it “constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946).

29. In light of our approval of these broad delegations, we harbour no doubt that Congress’ delegation of authority to the Sentencing Commission is sufficiently specific and detailed to meet constitutional requirements. Congress charged the Commission with three goals: to “assure the meeting of the purposes of sentencing as set forth” in the Act; to “provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records ... while maintaining sufficient flexibility to permit individualized sentences”, where appropriate; and to “reflect, to the extent practicable, advancement in knowledge of human behaviour as it relates to the criminal justice process.” 28 U.S.C. § 991(b)(l). Congress further specified four “purposes” of sentencing that the Commission must pursue in carrying out its mandate: “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”; “to afford adequate deterrence to criminal conduct”; “to protect the public from further crimes of the defendant”; and “to provide the defendant with needed ... correctional treatment.” 18 U.S.C. § 3553(a)(2).

30. In addition, Congress prescribed the specific tool - the guidelines system - for the Commission to use in regulating sentencing. More particularly, Congress directed the Commission to develop a system of “sentencing ranges” applicable “for each category of offense involving each category of defendant”. 28 U.S.C. §994(b). Congress instructed the Commission that these sentencing ranges must be consistent with pertinent provisions of Title 18 of the United States Code and could not include sentences in excess of the statutory maxima. Congress also required that for sentences of imprisonment, “the maximum of the range established for such a term shall not exceed the minimum of that range by more than the greater of 25 percent or 6 months, except that, if the minimum term of the range is 30 years or more, the maximum may be life imprisonment.” §994(b)(2). Moreover, Congress directed the Commission to use current average sentences “as a starting point” for its structuring of the sentencing ranges. §994(m).

31. To guide the Commission in its formulation of offense categories, Congress directed it to consider seven factors: the grade of the offense; the aggravating and mitigating circumstances of the crime; the nature and degree of the harm. caused by the crime; the community view of the gravity of the offense; the public concern generated by the crime; the deterrent effect that a particular sentence may have on others; and the current incidence of the offense. §§994(c)(1)-(7). Congress set forth 11 factors for the Commission to consider in establishing categories of defendants. These include the offender’s age, education, vocational skills, mental and emotional condition, physical condition (including drug dependence), previous employment record, family ties and responsibilities, community ties, role in the offense, criminal history, and degree of dependence upon crime for a livelihood. §994(d)(1)-(l 1). Congress also prohibited the Commission from considering the “race, sex, national origin, creed, and socio-economic status of offenders,” § 994(d), and instructed that the guidelines should reflect the “general inappropriateness” of considering certain other factors, such as current unemployment, that might serve as proxies for forbidden factors, § 994(e).

32. In addition to these overarching constraints, Congress provided even more detailed guidance to the Commission about categories of offenses and offender characteristics. Congress directed that guidelines require a term of confinement at or near the statutory maximum for certain crimes of violence and for drug offenses, particularly when committed by recidivists. §994(h). Congress further directed that the Commission assure a substantial term of imprisonment for an offense constituting a third felony conviction, for a career felon, for one convicted of a managerial role in a racketeering enterprise, for a crime of violence by an offender on release from a prior felony conviction, and for an offense involving a substantial quantity of narcotics. §994(i). Congress also instructed “that the guidelines reflect ... the general appropriateness of imposing a term of imprisonment” for a crime of violence that resulted in serious bodily injury. On the other hand, Congress directed that guidelines reflect the general inappropriateness of imposing a sentence of imprisonment “in cases in which the defendant is a first offender who has not been convicted

33. We cannot dispute petitioner’s contention that the Commission enjoys significant discretion in formulating guidelines. The Commission does have discretionary authority to determine the relative severity of federal crimes and to assess the relative weight of the offender characteristics that Congress listed for the Commission to consider. See § §994(c) and (d) (Commission instructed to consider enumerated factors as it deems them to be relevant). The Commission also has significant discretion to determine which crimes have been punished too leniently, and which too severely. §994(m). Congress has called upon the Commission to exercise its judgment about which types of crimes and which types of criminals are to be considered similar for the purposes of sentencing.

34. But our cases do not at all suggest that delegations of this type may not carry with them the need to exercise judgment on matters of policy. In Yakus v. United States, 321 U.S. 414 (1994), the Court upheld a delegation to the Price Administrator to fix commodity prices that “in his judgment will be generally fair and equitable and will effectuate the purposes of this Act” to stabilize prices and avert speculation. See id, at 420. In National Broadcasting Co. v. United States, 319 U.S. 190 (1943), we upheld a delegation to the Federal Communications Commission granting it the authority to promulgate regulations in accordance with its view of “public interest”. In Yakus, the Court laid down the applicable principle:

35. Developing proportionate penalties for hundreds of different crimes by a virtually limitless array of offenders is precisely the sort of intricate, labour-intensive task for which delegation to an expert body is especially appropriate. Although Congress has delegated significant discretion to the Commission to draw judgments from its analysis of existing sentencing practice and alternative sentencing models, “Congress is not confined to that method of executing its policy which involves the least possible delegation of discretion to administrative officers.” Yakus v. United States, 321 U.S., at 425-426. We have no doubt that in the hands of the Commission “the criteria which Congress has supplied are wholly adequate for carrying out the general policy and purpose” of the Act. Sunshine Coal Co. v. Adkins, 310 U.S. 381, 398 (1940).”

36. This judgment sets out clearly the policies established by the legislature of the United States. The Supreme Court of the United States applied the “intelligible principle” test and found the delegation to be sufficiently specific and detailed. It found that Congress had requested the Commission to meet three goals which were spelt out. Further, Congress specified four purposes which the delegated authority must pursue, Congress prescribed the tool for the Commission to use and Congress directed the Commission, as a guide, to consider seven specified factors. In addition, Congress set forth eleven factors for the Commission to consider in establishing categories and the Congress also provided detailed guidance about categories of offences and offender characteristics. This case shows modem legislation in the United States of America giving a delegated discretion yet with detailed principles and standards set out by the legislature.

37. Comparative case law was also cited from Australia. In Chu Kheng Lim and Ors. v. Minister for Immigration. Local Government and Ethnic Affairs and Another (1992) 176 C.L.R. 1, the High Court of Australia considered the nature of the power to deport aliens.

38. Mason C.J. described (at p.1 0) the authority to deport an alien as “an incident of executive power”. Brennan, Deane and Dawson JJ. in a joint judgment stated at pp. 29-30:

39. The question for consideration in Attorney General (Canada) v. Cain was whether the Canadian statute 60 and 61 Vict. c. 11 had validly clothed the Dominion Government with the power to expel an alien and to confine him in custody for the purpose of delivering him to the country whence he had entered the Dominion. The Judicial Committee concluded that it had. As the emphasised words in the above passage indicate, the power to expel or deport a particular alien, and the associated power to confine under restraint to the extent necessary to make expulsion or deportation effective, were seen as prima facie executive in character.

40. In this Court, it has been consistently recognized that the power of the Parliament to make laws with respect to aliens includes not only the power to make laws providing for the expulsion or deportation of aliens by the Executive but extends to authorising the Executive to restrain an alien in custody to the extent necessary to make the deportation effective.”

41. In this case we see the principle that control of aliens is prima facie a matter for the executive. Also touched upon is the matter of the transfer of power to a Dominion and the role of Parliament and the executive. However, the cases do not refer to or relate to a country with a written Constitution where the separation of powers has been established and is relevant to the issue. The cases relate to British constitutional governance with the royal prerogative and parliamentary sovereignty, not a written Constitution with a separation of powers, such as is found in Ireland and the United States of America.

42. This is the first challenge to the Aliens Act, 1935 on Article 15.2 grounds. It is a novel issue upon which to review the Act. As O’Dalaigh C.J. said in The State (Quinn) v. Ryan [1965] IR 70 at p. 120:

43. An echo of that wording may be seen in the Constitution of Ireland, 1937. It established clearly that the law-making authority for the State - the sole and exclusive power of making laws for the State - is vested in the Oireachtas.

44. That legislative power must be seen in the context of the Constitution of Ireland as a whole. The scheme created by the Constitution is based on the separation of powers. Ireland is a democratic State: Article 5. All powers of government, legislative, executive and judicial derive from the people: Article 6.1. These powers are exercisable only by the organs of State established by the Constitution: Article 6.2. In a classic exposition of the separation of powers three branches of government are established. To the legislature is given the sole and exclusive powers of making laws: Article 15.2.1 To the government is given the executive power of the State: Article 28.2 To the judges is given the judicial power: Article 34.1.

45. Thus, the general structure of the Constitution follows the doctrine of the separation of powers. A similar approach, though not identical, can be seen in the Constitution of the United States of America. The Irish structure is not a simple or clear-cut separation of powers. There is overlapping and impingement of powers. However, in a general sense there is a functional division of power.

46. Historically, the control of aliens is for the executive. Aliens are not mentioned in the Constitution. However, the executive of a State, as an incident of sovereignty, has power and control over aliens. If this case simply raised the issue of the nature and extent of executive power as to aliens it would be a different matter. It does not.

47. The nature of sovereignty is not in issue. Nor is the ambit of the executive powers of the State. At issue is the power of the legislature to delegate. If the Act had never been passed then issues of sovereignty and executive powers would have been relevant. But the legislature having seized itself of the subject, its power to delegate, as it purported to do to the Minister, is the kernel of the case and the issue for decision. The constitutional power of the legislature to legislate being found in Article 15.2, this case falls to be decided in the light of that Article and relevant case law.

48. The Oireachtas is the legislative organ of the State. It has the exclusive power to legislate under the Constitution, subject to the European Union which does not arise in this case. However, it must exercise this power in accordance with the Constitution. Article 15.2 means that there are limits on the Oireachtas - while it is given the power to legislate it is the sole body with that power and as such has a duty to legislate and is constitutionally prohibited from abdicating its power. In accordance with the Constitution it is for the Court to determine whether the constitutional framework has been breached.

49. There are limits to permissible delegation by the organs created by the Constitution. The Oireachtas may not abdicate its power to legislate. To abdicate would be to impugn the constitutional scheme. The scheme envisages the powers (legislative, executive, judicial) being exercised by the three branches of government - not any other body. The framework of the Constitution, the separation of powers, the division of power, retains a system which

50. According to the Constitution and the law it is for the Oireachtas to establish the principles and policies of legislation. It may delegate administrative, regulatory and technical matters. The principles and policies test has been part of Irish case law since 1939 - as has been set out earlier in this judgment. It is somewhat similar to the case law requiring standards to be set by the legislature, for delegated legislation, in the United States of America.

51. The principles and policies test must be applied in accordance with constitutional presumptions as to the interpretation of legislation (favouring that which is constitutional) and presuming actions by Ministers and officials will be made in a constitutional fashion. However, none of these presumptions can determine this case. As this is not a Henry VIII clause case I reach no conclusions on that type of delegated legislation. Insofar as Harvey v. The Minister for Social Welfare related to a situation where it was purported to amend legislation by regulation, a special issue not relevant here, I find it neither relevant nor helpful.

52. There has not been extensive analysis of the principles and policies test. Partly this is because of the very nature of the issue. Each case depends on its own facts and requires that the principles and policies of those matters be set out in the legislation.

53. Mr. Finlay, S.C. for the State, submitted that the policy created by the legislature was that aliens were only allowed in the State and to remain in the State with the consent of the Minister. It is clear that the Oireachtas intended that aliens would be deported if in the opinion of the Minister the common good so required. However, principles and policies such as those discussed in Cityview and McDaid are not present. Standards, goals, factors, and purposes such as those set out in Mistretta are absent.

54. Counsel referred to factors which he argued were important in relation to this delegated legislation. Thus, the orders to be made by the Minister under Section 5 are subject to the provisions of Section 5 (8) which require them to be laid before the Houses of Parliament; the powers of the Minister are subject to the provisions of Section 5 (4) and Section 5 (5) of the Act as well as other legislative measures such as the free movement provisions of European Union law to which effect is given in the State principally through the European Communities (Aliens) Regulations, 1977; the Minister must act in accordance with constitutional justice and fair procedures; although the deportation power is administrative/executive it is accepted that the Minister is subject to review by the Courts in accordance with the principles established in The State (Lynch) and Cooney, [1982] I.R .337 and O’Keeffe v. An Bord Pleanála [1993] 1 IR 39 the Minister’s powers are subject to the provisions of the Constitution, (see for example Fajujonu v. The Minister for Justice [1990] 2 IR 151 where the family law principles of the Constitution came into play); the rule-making power in this case is the Minister who is politically accountable to the Oireachtas.

55. However, the two Houses of Parliament are not the Oireachtas; most of the legislative restrictions on the Minister are post-1935 and are not helpful to the interpretation of s.5 (l)(e); even though the Minister must act in accordance with the principles of constitutional justice this does not correct the situation if there has been an unconstitutional delegation of

56. If there had been no legislation the situation would have a parallel to that of the issue of passports. That also is a classic example of an exercise of the executive power of a Sovereign Nation. There has been no legislation on this matter in Ireland. The scheme is run by a Minister of the executive. It must be run in a constitutional and fair manner. However, there is no issue of the constitutional ambit of delegated legislation as the Oireachtas has not sought to give the powers to the Minister.

57. The inherent authority of the State and The powers of the State incidental to sovereignty are not relevant. The issue in this case is net - the power of the legislature to delegate.

58. This case turns on Article 15.2 of the Constitution and its interpretation as regards delegated legislation. This raises the principles and policies test. One searches in vain to find principles and policies regarding deportation of aliens in the Act. The legislature grasped the power over aliens from the executive and then delegated inadequately to the Minister. It abdicated its power.

59. The Act was enacted at a time when the constitutional jurisprudence of the new State was unfolding and authority still being transferred one way or another to the new nation. The 1922 Constitution was in force. The principles test by Hanna J. was yet to be decided and the

60. Analysed in accordance with Article 15.2, as must be done, the Act was an abdication of the legislature’s duty to set policies and principles. The power of the legislature must be protected. The power is for that body for the benefit of democratic government and may not be surrendered.

61. This case did not raise for decision any issue on the sovereign power of the State nor the inherent powers of the State. Thus, neither have been addressed.

62. For the reasons set out in the judgment I would dismiss the appeal.

63. This appeal raises a net point on the consistency, or otherwise, with the Constitution of Section 5 (1) (e) paragraph (e) of the Aliens Act, 1935.

64. The Applicant/Respondent (hereinafter referred to as the Applicant) was the subject of an Aliens Order made by the Minister pursuant to the provisions of Article 13 of the Aliens Order, 1946 (No. 395 of 1946). This Court has already held that Article 13 of the Aliens Order, 1946 is intra vires the powers of the Minister under Section 5(1) (e) of the Aliens Act, 1935. (See Tang v. Minister for Justice [1996] 2 ILRM 46). The question for consideration in this case is whether the general power of deportation contained in Section 5(1) (e) of the Aliens Act, 1935 is itself consistent with the Constitution.

65. The Aliens Act, 1935 is described, in its long title, as:-

66. An alien is defined as a person who is not a citizen of Saorstát Eireann. The Act entitles aliens to hold property and makes them amenable to, and triable under, the law of Saorstát Eireann to the like extent in all respects as a citizen.

67. What it does not do is to allow to aliens generally any right to be in Saorstát Eireann.

68. Section 10 of the Act reads as follows:-

69. Finally, Section 11 is in the following form:-

70. Article 12 of the Constitution of the Irish Free State provided, inter alia, as follows:-

71. For the purposes of this case I would be of the view that the difference of wording between the relevant provisions of Article 15 of the present Constitution and of Article 12 of the Constitution of the Irish Free State are so slight that if the Aliens Act, 1935 could be presumed to be not in conflict with the relevant provisions of the Constitution of the Irish Free State it could also

72. For many years it was assumed that, because the Constitution of the Irish Free State could be amended during all of its life by “ordinary legislation” that any piece of legislation which, incidentally, conflicted with the Constitution amended it pro tanto even though it was not expressed to be an Act to amend the Constitution. This doctrine is derived from a passage in the Judgment of O’Connor M.R. in R (Cooney) v. Clinton (delivered in 1924 but not reported until 1935, see [1935] IR 245 , 247. The passage in question reads as follows:-

73. But if one looks at Article 50 of the Constitution of the Irish Free State it seems quite clear that the Article uses the term “ordinary legislation” to distinguish amendments which may, for a limited period, be made by the Oireachtas itself from amendments which must be submitted to the people by way of referendum.

74. To derive from this distinction a doctrine that the Constitution could be amended by ordinary legislation which need not even be expressed to be a constitutional amendment showed scant respect to the Constitution. It also assumed that the Oireachtas had so little respect for the Constitution that they would amend it without thinking of what they were doing. It also had the practical disadvantage that one could not find out what the Constitution of the Irish Free State provided without reading the whole body of Statute law passed since 1922.

75. In any event this doctrine was abandoned by the modem Supreme Court in Conroy v. Attorney General [1965] JR 411 when it summarily rejected a submission that the Constitution of the Irish Free State must be taken to have been automatically amended by any provision of the Road Traffic Act, 1933 which was in conflict with it. (See p. 443)

76. For these reasons, therefore, I would approach this case on the basis that the onus of proving that Section 5 (1) (e) of the Aliens Act, 1935 is inconsistent with the Constitution rests on the Applicant.

77. Article 15 Section 2 of the Constitution vests in the Oireachtas “the sole and exclusive” power of making laws for the State. It is an assertion of the power of the Oireachtas. That is why, for instance, Section 6 of the Offences Against the State Act, 1939 makes it a criminal offence punishable with up to ten years penal servitude for any person to take part in any way in any body of persons purporting to be a legislature not authorised under the Constitution. Certainly one could not deduce from the words of Article 15 alone that the Oireachtas had not power, within the Constitution, to pass laws of any particular kind.

78. One must bear this in mind when considering the case of Cityview Press Ltd. v. An Chomhairle Oiliúna and Ors. [1980] IR 381. In that case the attack on the constitutionality of the Industrial Training Act, 1967 was rejected by the High Court and, on appeal, by the Supreme Court, so that the remarks about the limitations on the Oireachtas’s capacity to delegate its powers are obiter. More important, in that case Counsel were agreed on the principles to be applied and the dispute related merely as to how these principles were to be applied. As McMahon, J. put the matter at p. 389 of the Report:-

79. The reference to Article 6 is important. Article 6 provides that all powers of Government “legislative, executive and judicial ‘ derive, under God, from the people and goes on to provide that these powers of Government are excercisable “only by or on the authority” of the organs of State established by the Constitution.

80. Counsel maintained that common approach to the case in the Supreme Court and it is clear from their submissions that both sides relied on the Theory of Separation of Powers, and that the problem was how that theory was to be applied to the particular circumstances of that case. Both sides appear to have been agreed that one way of reconciling the powers of legislature with those of

81. The Court accepted these principles, used them to test the Statute, and found that the Statute survived the test.

82. But the purpose of the Theory of Separation of Powers is to protect the rights of the citizen. Absolute power may not be delegated to any executive agency because to do so would be inconsistent with the rights of the citizen. On the theory of the separation of powers, the rights of the citizen will be secure only if the legislature makes the laws, the executive implements them and the judiciary interprets them.

83. One of the tasks of legislation is to strike a balance between the rights of individual citizens and the exigencies of the common good. If the legislature can strike a definitive balance in its legislation so much the better. But the problem which confronted the Court in the Cityview Press case is that the facts of modem society are often so complex that the legislature cannot always give a definitive answer to all problems in its legislation. In such a situation the legislature may have to leave complex problems to be worked out on a case by case basis by the executive. But even in such a situation the legislature

84. This, as I understand it, was the reasoning of the learned High Court Judge in the present case and the reasoning appears to me to be perfectly sound. Where I, respectfully, disagree with the learned High Court Judge is in his application of this reasoning to the facts of the present case. The reasoning was developed in an effort to strike a balance between the rights of the individual citizen and the exigencies of the common good. But there is no such balance to be struck in the present case for the simple reason that, under our law, an alien has, generally speaking, no right to reside in Ireland. That is the principle on which the 1935 Act rests. It is important to remember that we are here dealing, not with the Rule, but with the exception.

85. That is why the 1935 Act is entitled an Act “For the control of aliens” The Act accepts that a number of aliens may in fact be in Ireland and provides that they are to be subject to the normal civil and criminal law as these affect citizens. The Act protects diplomatic and consular officials and authorises the Minister to make special provisions concerning the Masters of ships, the pilots

86. If one is to glean the policy of the Act from its terms it would appear to be that generally speaking aliens have no right to be in Ireland and may be excluded or deported at any time unless the Minister sees some reason for allowing them to remain.

87. Mr. Hogan S.C. (on behalf of the Applicant) submits and, Mr. Finlay S.C., in large measure, concedes that there are certain limits placed on the powers of the Oireachtas and of the powers of the Minister which derive from the fact that Ireland is a country governed by law. Thus the Oireachtas would not be competent to delegate to the Minister power to amend the Aliens Act itself. Likewise if the Oireachtas were to delegate to the Minister a discretion which on its face appeared absolute the Minister could not use this discretion to amend the Aliens Act itself. So also if an alien were to get involved in civil or

88. Costello, J. rejected the challenge stating at pages 596-7:-

89. Later in the same year Gannon, J. in Osheku v. Ireland [1986] IR 733 rejected a similar challenge stating at page 746:-

90. In the same case Gannon, J. made the following significant findings at page 749:-

91. In the following year (1987) the issue of the constitutionality of the Aliens Act, 1935, came before me in the case of Fajujonu & Ors. v. The Minister for Justice and Ors [1990] 2 IR 151 .

92. The first and second plaintiffs in that case were a Nigerian and a Moroccan citizen respectively, who had been married in London in 1981, and who, shortly thereafter had come to live in Ireland and had remained in Ireland without notifying the Minister for Justice of their presence. Shortly before the institution of proceedings Mr. Fajujonu had been asked by the Minister for

93. Justice to make arrangements to leave the State and it was this request, coupled with the fear that deportation order would follow, which gave rise to the proceedings.

94. The case was one of considerable hardship. At the date of the hearing before me Mr. Fajujonu and his wife had been resident in the State for upwards of six years. They had three young children all of whom had been born in Ireland. In 1983 they had been given a house by Dublin Corporation in Ballyfermot. They were apparently popular with the local community. The Secretary of the local Tenants Association, Mr. Larkin gave evidence on their behalf at the hearing before me. Indeed it would appear that it was a request by the Committee of the Ballyfermot Sports and Leisure Complex to employ Mr. Fajujonu which brought his presence in the country formally to the attention of the Department of Justice.

95. However, as I stated at page 153 of my Judgment:-

96. However I felt obliged to follow the decisions in Osheku v. Ireland and Pok Sun Shun v. Ireland with which I expressed myself to be in agreement.

97. When the matter came on appeal before the Supreme Court Mr. and Mrs. Fajujonu had been resident in the State for upwards of eight years. In the Supreme Court the Appellants formally abandoned their attack on the constitutionality of Section 5 of the Aliens Act, 1935 and sought instead guidance as to the way the Minister should exercise his discretion under the Section having regard to the period of time during which the parents had been resident within the State and having regard to the fact that the children were Irish citizens. The Court accordingly dismissed their appeal on the constitutionality of the Act but, in the peculiar circumstances of the case, allowed them to make the alternative case concerning the exercise of ministerial discretion. As Finlay, C.J. (with whom Griffin, J., Hederman, J. and McCarthy, J. agreed) put the matter at [1990] 2 IR 160, 162.

98. It is quite clear from the passage quoted (and in particular from the last paragraph) that Finlay, C.J. was satisfied that the Act was not inconsistent with the Constitution but that the Minister, in exercising his discretion, would have to give due and proper consideration to all the circumstances of this case.

99. The emphasis in the Judgment of Walsh, J. (with which Griffin, J. Hederman, J. and McCarthy, J. also agreed) is slightly different. He warned, for instance that the Minister could not give inconsistent reasons for a

100. Walsh, J. however was also of the opinion that the Aliens Act was not inconsistent with the Constitution. At page 166 of the Report he says:-

101. The control of aliens, though vested principally in the Minister for Justice, relates also to the foreign policy of the State and, in earlier times, was one of the prerogative powers of the Crown. In earlier times prerogative powers were used to authorise the settling in Ireland of Huguenot refugees from France and Protestant refugees from the Palatinate. Many of the sovereign States of Europe used such powers to entice to their countries workers with particular skills such as workers skilled in making silk or glass. At the present time the Government is considering the admission of refugees from Kosovo but the fact that some aliens are admitted does not mean that those not admitted are entitled to complain of discrimination. The reason is simple. They have no right to be in Ireland and the mere fact of their exclusion does not therefore constitute unlawful discrimination against them. The Minister may decide, in the interest of the common good, to admit a particular alien or aliens with particular qualifications such as doctors or computer experts. The Government has, under Section 10 of the Act, given rights, on a reciprocal basis, to British subjects and, at a later stage, to citizens of the Member States of the European Union. But the general power to exclude aliens still remains. This is legislation of a unique kind where the people who are the subject matter of the legislation are not recognised as having any right

102. Whether this system suits the needs of the modern world is another question. Already the State has had to make an exception to it to maintain the common market in labour between this State and the neighbouring island. Another major exception was required on our entry to the European Economic Community (as it then was). It may be that the increased movement of people in the modern world demands a different system. But this is a matter for the Oireachtas not for this Court.

103. I would reverse the Order of the learned trial Judge.

104. The applicant in this case is a Romanian national who, before he left his native country in 1994, was a professional footballer. Three days after his

105. Immediately following his arrival in Ireland, he applied for asylum in the State under the provisions of the Geneva Convention relating to the Status of Refugees. Under those provisions, this State would be obliged to grant the applicant asylum if he were a refugee within the meaning of the Convention, i.e. a person who has left his native country because of a well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. That application was made to the first named Respondent (hereafter “the Minister”), as was an application to remain in the State based on humanitarian considerations. The office of the United Nations High Commissioner for Refugees (hereafter “UNETCR”) have set out certain principles and procedures to be applied by the contracting states in dealing with applications under the Convention in a document known as “the Von Arnim letter” which was in due course superseded by the “Hope Hanlan letter”. It was not in dispute in this case that the Minister, in accordance with normal procedures, consulted with UNHCR before arriving at his decision.

106. That decision was to refuse the applicant’s claim to be treated as a refugee under the Convention. An appeal was brought from it in accordance with the relevant procedure to the Interim Refuge Appeal Authority (the retired President of the Circuit Court, Mr. Justice O’Malley): he recommended that the

107. Minister’s decision be affirmed and, accordingly, the Minister refused to alter his original decision. On the 12th March 1998, the Minister also refused the application for leave to remain on humanitarian grounds and the applicant’s solicitor was informed that a deportation order had been made pursuant to the Aliens Order 1946 (hereafter “the 1946 Order”). On March 16th, 1998 the High Court gave leave to the applicant to apply for judicial review in respect of these decisions and interim relief restraining the deportation was also granted pending the outcome of the proceedings.

108. In the proceedings, the applicant claims a range of reliefs, including orders of certiorari quashing the various decisions to which I have referred on the grounds that the procedures to which I have referred had not been followed, that, in particular, the Von Arnim and Hope Hanlan principles had not been applied and that, in any event, Article 13 (1) of the 1946 Order, under which the applicant was purportedly being deported, was ultra vires the Aliens Act 1935 (hereafter “the 1935 Act”) under which it was purportedly made. In addition, the applicant claimed a declaration that the relevant provisions of the 1935 Act were inconsistent with the provisions of the Constitution and, hence, had not survived the enactment of the Constitution.

109. A Statement of Opposition having been filed on behalf of the Appellants, the substantive case came on for hearing in the High Court before Geoghegan J. In a reserved judgment, he dealt first with the grounds other than those relating

110. An appeal has now been taken to this court from that finding and the applicant, for his part, has cross appealed against the dismissal by the learned High Court judge of his claim for other relief by way of judicial review in respect of the decisions and order of the Minister.

111. Although one paragraph only of s.5(1) is challenged in these proceedings, the entire subsection must be set out. It provides that:-

112. Subsection (2) empowers the Minister to include in an aliens order provisions for a number of purposes which, in his opinion, may be necessary for giving full effect to or securing compliance with the order. These extend to

113. Subsection (4) provides that an aliens order is not to apply, in general, to members of diplomatic or consular missions. Subsection (5) provides that, subject to certain qualifications, an alien who has been ordinarily resident in the State for not less than five years and is either employed or engaged in a business or profession is not to be deported under an aliens order.

114. Subsection (8) provides that

115. Section 10 of the Act should also be noted. It empowers the Executive Council (now the Government) to exempt by order nationals of any specified country from the provisions of the Act. It appears that the power has been exercised in respect of one country only, the United Kingdom. Our accession to the ECC, as it then was, in 1972 also led to the making of the European Communities (Aliens) Regulations 1977 (SI No. 393 of 1977) which established a different regime for aliens who were nationals of a member state.

116. In purported exercise of the power conferred by the 1935 Act, the Minister made the Aliens Order 1946 (SRO No. 395 of 1946) (hereafter “the 1946 Order”). Article 13 provides inter alia as follows:-

117. The provisions of the 1935 Act and the 1946 Order have been considered in a number of cases in the context of the Constitution. In Tang v. Minister for Justice High Court, unreported, Flood J, 11 October 1994, the High Court declared Article 13(1) of the Aliens Order 1946 to be ultra vires the powers conferred on the Minister by the 1935 Act because the parent Act did not expressly authorise the Minister to make a deportation order where he deemed it “conducive to the public good”. That decision was reversed by this court, which found the 1946 Order to be intra vires the powers conferred on the Minister by s.1 1 of the 1935 Act ( Tang v. Minister for Justice [1996] 2 ILRM 46) In the course of his judgment in that case, Hamilton C.J. cited with approval the following passage from the judgment of Gannon J. in Osheku v. Ireland [1986] IR 733, 746:-

118. In the constitutionality of the 1935 Act was upheld, but it had not been challenged on the ground advanced in this case. That decision was followed by Barrington J as a High Court judge in Fajujonu v. Minister for Justice [1990] 2 IR 151, but again the ground relied on by the plaintiff was not the same as that advanced in the present case. The claim that the Act was unconstitutional was abandoned in the Supreme Court.

119. A similar view to that expressed by Gannon J. as to the inherent power of sovereign states to exclude and deport aliens has been taken in at least two

120. It should also be noted that, although it was made clear in Oshekii that the vindication of the rights of the State itself could have as its consequence the restriction of the exercise of personal rights, circumstances may also arise in which the exercise by the Minister of his powers, or at least the manner in which they are exercised by him, must yield to the necessity to protect such

121. In that case, Walsh J. (at page 166) said

122. Since the challenge to the constitutionality of the 1935 Act was not pursued in this court, that observation was clearly obiter but, in any event, I do

123. The increasing recourse to delegated legislation throughout this century in this and the neighbouring jurisdictions has given rise to an understandable concern that parliamentary democracy is being stealthily subverted and crucial decision making powers vested in unelected officials.

124. The exclusive law making role of the national parliament under the Constitution is set out in emphatic language in Article 15.2. 1 :-

125. Historically, this Article can be seen as an uncompromising reassertion of the freedom from legislative control by the Imperial Parliament at Westminster of the new State. But it is also an essential component in the

126. The reference to “the Government” in the last sentence might, I think, more appropriately have been to “the Oireachtas”. Subject to that qualification, that passage still clearly represents the law and has been endorsed on more than one occasion by this court. In one such decision, Cityview Press & Anor. v. An Chomhairle Oiliúna & Ors. [1980] IR 381, O’Higgins C.J., speaking for the court, explained the criteria for determining whether the delegation of powers is permissible in somewhat more detail (at page 399):-

127. The learned Chief Justice pointed out that the statute being considered in that case contained a provision for the annulment of the regulations or orders

128. Whatever else may be said of the legislation under consideration in the present case, it can hardly be suggested, in the context with which we are concerned, that it is in the slightest degree unclear or ambiguous. In the plainest of language it empowers the Minister to exclude and deport, not merely particular aliens, but whole categories of aliens determined by their nationality or “class”. Yet, if Mr. Finlay’s submissions are well founded, the Minister would be precluded from doing precisely what the Act says he can do, assuming such a determination could be regarded as a “policy” decision. There would, moreover, be little left of the decisions in Pigs Marketing Board v. Donnelly and Cityview Press on that view of the law, since it is difficult to imagine a case in which it could not be said that the Minister would, in any

129. Since a judgment I gave as a High Court judge ( Carrigaline Company Limited v. Minister for Transport [1997] 1 ILRM 241) was also relied on by Mr. Finlay, I should refer to the passage in it from which he sought to draw support. That was a case concerned inter alia with the validity of regulations made under the Wireless and Telegraphy Act 1926-1988 in connection with the granting of licences. It was submitted that s.5 of the 1926 Act which conferred the licensing power was invalid having regard to Article 15.2.1. Having referred to Cityview Press Limited . I went on (at page 289):-

130. The importance of the principles set out in these authorities in a jurisdiction with a written constitution founded on the separation of powers is confirmed by the jurisprudence of the United States Supreme Court which is considered in detail by Denham J in her judgment.

131. Since it was not enacted by the Oireachtas, the 1935 Act does not enjoy the presumption of constitutionality, although it was not, I think, seriously disputed that the onus was on the applicant to demonstrate that the impugned provision was inconsistent with Article 15.1. Moreover, as pointed out by the High Court of Saorstát Éireann in The State (Kennedy) v. Little [1931] IR 39 and O’Higgins C.J. in Norris v. Attorney General [1984] IR 36 , it is to be assumed, in the case of the transitory provisions of both Constitutions, that it was intended that the existing body of law should be carried forward with as little dislocation as possible.

132. I am also prepared to assume, for the purposes of this case, that the power vested in the Minister by s.5(1)(e) will be exercised by him in accordance with the Constitution and that he will, where appropriate, apply fair procedures. While the presumption identified by Walsh J. in the East Donegal case is no doubt a corollary of the presumption of constitutionality itself, which, at least in the formal sense, does not arise in this case, the Minister, as a member of the Government established under the Constitution, is an office

133. The central issue in the case, however, is as to whether s.5(l)(e) of the 1935 Act infringes Article 15.1 because the principles and policies, if any, which are to be given effect to by orders made by the Minister in exercise of his powers under the provision are not set out in the statute itself.

134. In considering that question, it is helpful to examine more closely the expression “principles and policies”. The “policy” of a particular legislative provision is presumably an objective of some sort which parliament wishes to achieve by effecting an alteration in the law. To take a clear cut example, the policy of legislation concerning rented property was initially to prevent the exploitation of tenants by drastically abridging freedom of contract. In more recent times, the Oireachtas took the view, prompted by the courts (see Blake v. Attorney General. [1982] IR 117) that the law was, in some areas at least, unduly weighted in favour of the tenants. Accordingly, the pre-existing law was altered so as to give effect to a different objective. However, as the use of the expression “principles and policies” in the plural by O’Higgins C.J. indicates and the example I have given illustrates, one can have different

135. In the present case, accordingly, it is necessary to identify first the alterations in the law, if any, effected by the relevant provisions and, secondly, the objective which was intended to be thereby achieved.

136. In considering what was the state of the law when the 1935 Act was enacted, I shall leave out of account, for reasons which will become apparent later, the legislation which was then in force and which was repealed by the 1935 Act itself. It is clear that, altogether apart from the provisions of the 1935 Act and any preceding legislation, Saorstát Éireann as a sovereign state enjoyed the power to expel or deport aliens from the State for the reasons set out in the judgment of Gannon J. in Osheku v. Ireland . It is, of course, the case that in modern times, both here and in other common law jurisdictions, the exercise of the power is regulated by statute, but that does not affect the general principle that the right to expel or deport aliens inheres in the State by virtue of its nature and not because it has been conferred on particular organs of the State by statute.

137. An explanation of the manner in which the principle was applicable in the case of member states of the former British Commonwealth is to be found in the judgment of Lord Atkinson giving the advice of the Judicial Committee

138. Article 51 of the Constitution of the Saorstát Éireann declared that the executive authority of the State was to be vested in the King, but the wording of the Article made it clear that, in effect, it was to be vested in the Executive Council which was to “aid and advise” the Crown in its exercise. In English constitutional theory, the executive power of the State, to the extent that it was not expressly delegated by legislation to other bodies, such as Ministers, was regarded as being vested in the Crown in the form of the royal prerogative. It was accepted by counsel in the present case that the power of the State to deport aliens independently of any statutory power was part of the prerogative power. It is unnecessary, in the context of the present case, to consider in any detail the vexed question as to the extent to which, and the form in which, the royal prerogative survived the enactment of the 1922 Constitution which was considered by this court in Webb v. Ireland [1988] IR 353 and Howard v. Commissioners of Public Works [1993] ILRM 665 . It is sufficient to say that, in the light of the authorities to which I have referred, it is clear that, at the time the 1935 Act was enacted, the power of Saorstát Éireann to expel or deport aliens was, in the absence of legislation, vested in the Crown acting on the advice of the Executive Council.

139. The change, accordingly, effected in the law by s.5(1)(e) was not the conferring on the State of an absolute and unrestricted power to deport aliens: that power was already vested in the State. But it was now to be exercised by

140. That was certainly an alteration in the law; but to describe it as a “policy” begs the question, since it assumes that such an alteration can properly be so described. The policy of the legislation was not to enable the State to deport aliens at its pleasure, subject only to whatever qualification, by legislation or otherwise, it elected to impose on the exercise of the power: that power was already vested in the State. The effect of the alteration was to enable the Minister, and not the Oireachtas, to determine, not merely the aliens or classes of aliens who should be deported, but also the modifications, if any, to which the exercise of the power should be subjected. Undoubtedly, the designation of categories of aliens as being either immune from, or subject to, deportation at the discretion of the State and the delineation in legislative form of

141. The situation in this case is in some ways analogous to that which arose in McDaid v. Sheehy & Ors . The central role in the raising of revenue allotted to Dáil Éireann under Article 17 of the Constitution had been effectively delegated in that case to the Government and, as Blayney J. found, such a delegation could not of itself be properly described as a “policy”. It is difficult to see how the similar assignment in this case of the State’s power to deport aliens to a minister could properly be regarded as a “policy”.

142. It is quite usual to find that the exercise of the rule making power is subject to annulment by either House and I do not underestimate the value of such a provision. However, even in the hands of a vigilant deputy or senator, it

143. It cannot be too strongly emphasised that no issue arises in this case as to whether the sovereign power of the State to deport aliens is executive or legislative in its nature: it is clearly a power of an executive nature, since it can be exercised by the executive even in the absence of legislation. But that is not to say that its exercise cannot be controlled by legislation and today is invariably so controlled: any other view would be inconsistent with the exclusive law making power vested in the Oireachtas. The Oireachtas may properly decide as a matter of policy to impose specific restrictions on the manner in which the executive power in question is to be exercised: what they cannot do, in my judgment, is to assign their policy making role to a specified person or body, such as a Minister.

144. It is instructive, in this context, to consider the manner in which the Minister actually exercised his powers under s.5 when he came to make the 1946 Order. I have already cited in part Article 13 which relates to deportation: its remaining provisions are purely regulatory or administrative in nature.

145. However, the provisions of Article 5(3) provide an interesting contrast. They are as follows:-

146. These provisions, which were subsequently replaced by the Aliens Order, 1975, were clearly intra vires the wide-ranging powers given by s.5(1) of the 1935 Act. They also replicate to some extent provisions which were at one stage applicable to Ireland when part of the United Kingdom but which were contained in s.1 of the Aliens Act 1905 and not in any regulation or order made under that Act. Section 3 of the same Act provided for the deportation of “undesirable aliens” but only in specified circumstances, e.g. where an offence had been committed. The restrictions on the deportation power were to be found, accordingly, in the Act itself and not in delegated legislation.

147. It is convenient at this juncture to continue the account of the pre-1935 legislation. On the 5th August 1914, within hours of the beginning of the Great War, the Imperial Parliament at Westminister enacted the Aliens Restrictions Act, 1914. It enabled the Crown to make wide-ranging Orders in Council dealing with the admission and deportation of aliens

148. While the wording is somewhat different from Article 15.1, it would seem to follow inevitably that, if s.5(1)(e) was inconsistent with the provisions of Article 15.1, of the present Constitution, the corresponding provisions in the 1914 and 1919 Acts were similarly inconsistent with the provisions of Article 12 of the Constitution of the Irish Free State, which contained transitory provisions similar to those contained in the present Constitution.

149. That, however, is of academic interest only, as is the question as to whether the 1935 Act itself survived at least until the enactment of the present Constitution. Pursuant to the provisions of Article 50 of the 1922 Constitution, as interpreted by the courts, the Oireachtas were entitled to amend the Constitution by ordinary legislation at the time the 1935 Act was enacted.

150. Southern Ireland in R. (Cooney) v. Clinton [1935] IR 245 (actually decided in 1924) that the Constitution could be so amended, but that view appeared to have been rejected by this court in Conroy v. Attorney General and Another [1965] 41 1 where it was said at page 443 that

151. However, in that case the court had already found that the corresponding provisions in the Road Traffic Act 1961 were constitutional and, accordingly, it necessarily followed that the 1933 Act was not in conflict with the provisions of the 1922 Constitution which were in similar terms to those under consideration in Conroy’s case. A more complete statement of the position is to be found in the judgment of Ó Dálaigh C.J. in the subsequent case of McMahon v. Attorney General [1972] IR 69 where he said (at page 10 1):-

152. Since, however, this particular issue was not fully argued in the present case and is in any event unnecessary to its disposition, I would not, for myself, express any concluded view as to whether, assuming its lack of conformity with the 1922 Constitution, the 1935 Act should be held to have amended that instrument.

153. Accordingly, one returns finally to the initial question, i.e. as to whether s.5(1)(e) was inconsistent with Article 15(1) of the Constitution. I am satisfied that the power which it gave to the Minister to determine the policies and principles by reference to which the power already vested in the State to deport

154. The relevant facts of this case have been fully set out in the Judgments just delivered and it is unnecessary for me to repeat them here. I had an opportunity of carefully reading and considering the Judgments in advance of today’s sitting and I find myself in agreement with the Judgment of Barrington, J. I’ll just add a few words of what I hope are practical considerations.

155. The State has virtually absolute power regarding the granting or withholding of the right of aliens to come into and remain within the territory of the State. Article 5 of the Constitution and Osheku v. Ireland [1986] IR 733. The organ of Government to exercise this power on behalf of the State is logically the executive organ (the Government). The legislative organ of Government (the Oireachtas) can nominate a member or members of the executive organ to exercise the power on behalf of the Government and the State. This the Oireachtas has done by the Aliens Act, 1935 nominating the Minister to fulfil that role.

156. It could be advantageous to “the people of Éire” as referred to in the preamble to the Constitution to provide that only aliens of a certain class could land in or enter into or remain in the State - for example only persons who have the benefit of third level education and possessed a degree from a reputable University. It could hardly be gain said that such a regulation was seeking to

157. Conversely it would not promote the common good of the people of Éire to admit into the State aliens of dubious character likely to engage in telephone, credit card, or computer frauds or any other criminal activity. That is obvious, but one could also say that to admit aliens from a place of illiteracy and absence of the skills required for modem industrial and commercial life would not promote the common good of the Irish Nation either although pushed too far this might conflict with the concept of charity and concord with other Nations also referred to in the preamble to the Constitution. The circumstances of aliens vary to such an extent depending on what part of the world they come from and on the ethos of each succeeding generation that to be effective the powers of control to be given to the executive by the Oireachtas must necessarily be very wide and very widely defined. This is why the powers given to the Minister by the Aliens Act, 1935 are so widely drawn. They confer on the Minister a very wide ranging discretion in the exercise of the

158. State and the Nation’s right to grant or refuse entry to the national territory. Read in the light of the Constitution the Minister must exercise these powers bonafide in the interests of the common good of the people of Éire and of concord with other Nations, a formula which allows for discrimination between aliens of a particular nationality or otherwise of a particular class or of particular aliens. See Tang v. The Minister for Justice [1996] 2 ILRM 46. The Constitution would also of course require that the Minister exercise his wide ranging powers in accordance with natural justice and fair procedures.

159. By making the Aliens Order, 1946 the Minister has not changed the law in any way. He has merely applied the law arising from the sovereignty of the State and as nominated so to do by the Aliens Act, 1935 to various aliens and categories of aliens in the interests of the common good of the citizens of this State.