Government ignored warnings on immigration legislation

THE GOVERNMENT pushed through its Immigration Act despite being repeatedly warned five years ago that sections of it were unconstitutional

The then Justice Minister, John O'Donoghue, and the then Attorney General, David Byrne, ploughed ahead with the legislation, sections of which were duly found unconstitutional by the High Court this week.

Thursday's landmark ruling found that section 2.1 of the Immigration Act was unconstitutional because it sought to establish in new legislation ministerial orders made on the basis of the Aliens Act of 1945 which had never been agreed to by the Oireachtas.

Under the Constitution the Oireachtas and not the minister of the day is the only body with the power to pass legislation.

Nevertheless, when the legislation was being debated in the Dáil in February 1999, Mr O'Donoghue contested the view of Labour's Brendan Howlin that parts of the bill were unconstitutional.

At the time Mr Howlin had warned: "Section 2 is an unacceptable whitewash of illegality and deprives this House of the power to amend or review those provisions."

But Mr O'Donoghue did not take the advice on board.

"I have every confidence that the orders, made in consultation with the Attorney General, will stand up to the closest legal scrutiny," he said.

"They were carefully considered in consultation with the Attorney General. Had that not been the case, I would not have signed them," he added.

Responding to this week's ruling, Justice Minister Michael McDowell said no decision on whether the Government would appeal the ruling had been made. But he promised to introduce primary legislation as soon as possible to deal with the legal loophole.

"We want to get it right this time and we want to be sure there are no loopholes in our aliens law from now on," he said.

Until that happens any immigrant whose permission to remain in Ireland has expired can legally remain here unchallenged.

Opposition parties, legal experts and human rights campaigners last night rounded on the Government for seeking to introduce legally fragile and short-term measures instead of properly implementing immigration policy in primary legislation.

Ashling Reidy of the Irish Council for Civil Liberties said the Government's continued lack of a long-term immigration policy and tendency to seek stopgap measures was to blame.

"This is the sort of thing they will get if they continue to think about their immigration policies in a scattered piecemeal fashion," she said.

Fine Gael's John Bruton said the High Court ruling was of great importance since it curtailed the right of ministers to make new laws in future by orders that are never debated in or approved by the Houses of the Oireachtas.

"All order-made legislation now in force, will have to be reviewed to see if it is unconstitutional. The Dáil will, in future, have much more work to do in examining and passing legislation, which will have to set out, in detail, what is to be done rather than authorise ministers to make new law by order. This is welcome news for democracy," he said.

The Attorney General declined to say whether this week's ruling would impact on any additional legislation containing ministerial orders. "The indications of the judgment are being carefully examined," said a spokesperson.