New Asylum seeker legislation referred by Micheal D to the Council of State?

Stheno

Please excuse what is probably a stupid question, but I was reading the paper earlier, and read that Micheal D has referred new asylum seeker legislation to the Council of State for investigation as to whether it is "repugnant to the Constitution" and needs to be referred to the Supreme Court.

Here comes the stupid question, if the Constitution is supposed to be "the fundamental legal document that sets out how Ireland should be governed and the rights of Irish citizens." then how can laws affecting asylum seekers who are not citizens be repugnant to the constitution? Is it due to the fact that "The Irish Constitution recognises and declares that you have certain fundamental personal rights. These are confirmed and protected by the Constitution."? and could anyone give me an example?

TIA, I'm probably being properly thick here. I was trying to compare it to if we were signed up to the Geneva Convention and didn't abide by it if we had prisoners of war, but can't correlate it to the Constitution. Would it be stuff like rights to fair hearings/due process etc?

L1011

I suspect the main thing is to make sure that it withstands SC challenges by those affected by it. The legislation is meant to strip away layers of appeals and reduce the time before deportation if someone does not meet requirements but if they have any chance of an SC appeal, its rather self defeating

I expect it to be referred, passed and hence immunised against challenge.

Stheno

Thanks, I found another article on it on the indo (not the best source I know)

Apparently some of the considerations are

Among the issues to be considered by the group today is whether the definition of the “family” used in the Bill is too narrow and whether the rights of children could be infringed.

http://www.independent.ie/irish-news/politics/brian-cowen-and-bertie-ahern-pulled-back-from-christmas-holidays-early-34321277.html

coylemj

Stheno wrote: »

Please excuse what is probably a stupid question, but I was reading the paper earlier, and read that Micheal D has referred new asylum seeker legislation to the Council of State for investigation as to whether it is "repugnant to the Constitution" and needs to be referred to the Supreme Court.

It's not the main point you were raising but the President does not refer the legislation to the Council of State 'for investigation' by them. The constitution says that the President cannot refer a bill to the Supreme Court until he has consulted the Council of State and heard what they have to say.

It's pretty much a token exercise because the President isn't bound by anything they say so even if every one of them states categorically that they firmly believe that the bill is in compliance with the Constitution, the President can still send it down to the Four Courts.

Bunreacht na hEireann:

26.1.1 The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof.

26.1.2 Every such reference shall be made not later than the seventh day after the date on which such Bill shall have been presented by the Taoiseach to the President for his signature.

26.1.3 The President shall not sign any Bill the subject of a reference to the Supreme Court under this Article pending the pronouncement of the decision of the Court.

As L1011 has pointed out, the reference to the SC is sometimes done not because the President thinks it's unconstitutional but because submitting the bill for such a test means that if passed by the SC and signed into law, it can never be the subject of a later constitutional challenge because of this provision in the Constitution ...

34.3.3 No Court whatever shall have jurisdiction to question the validity of a law, or any provision of a law, the Bill for which shall have been referred to the Supreme Court by the President under Article 26 of this Constitution, or to question the validity of a provision of a law where the corresponding provision in the Bill for such law shall have been referred to the Supreme Court by the President under the said Article 26.

Fred Swanson

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Dandelion6

L1011 wrote: »

I suspect the main thing is to make sure that it withstands SC challenges by those affected by it. The legislation is meant to strip away layers of appeals and reduce the time before deportation if someone does not meet requirements but if they have any chance of an SC appeal, its rather self defeating

You're confusing two different things. If the bill is referred and upheld, that will prevent any further constitutional challenges to the bill itself, but it won't prevent asylum seekers continuing to challenge decisions made against them by the Appeals Tribunal/Minister in the same way they currently do (which are not "appeals", btw). If the bill had the effect of making it impossible for them to challenge those decisions, that would be unconstitutional in itself - as well as being a clear breach of European law, which can still be invoked against the legislation regardless of Article 26.

coylemj

Irish Times has reported that Michael D has signed the bill into law......

President Michael D Higgins signs asylum Bill into law

President Michael D Higgins has signed a Bill on the Irish asylum process into law, after he decided against referring it to the Supreme Court.

A statement from Áras an Uachtaráin on Wednesday evening confirmed the signing of the International Protection Bill 2015 into law.

http://www.irishtimes.com/news/politics/president-michael-d-higgins-signs-asylum-bill-into-law-1.2480567

L1011

Dandelion6 wrote: »

You're confusing two different things. If the bill is referred and upheld, that will prevent any further constitutional challenges to the bill itself, but it won't prevent asylum seekers continuing to challenge decisions made against them by the Appeals Tribunal/Minister in the same way they currently do (which are not "appeals", btw). If the bill had the effect of making it impossible for them to challenge those decisions, that would be unconstitutional in itself - as well as being a clear breach of European law, which can still be invoked against the legislation regardless of Article 26.

I'm not.

With this untested by the SC, there will be significantly more challenges/appeals/whatever word you want than if it had been

Dandelion6

L1011 wrote: »

With this untested by the SC, there will be significantly more challenges/appeals/whatever word you want than if it had been

There would still be just as many challenges and appeals (the difference is real and important) as there ever were. Referring the bill to the Supreme Court would have prevented future constitutional challenges against the legislation itself, if it was upheld, but wouldn't have done anything to stop asylum seekers appealing first instance refusals or judicially reviewing decisions made in contravention of this or any other law. Which make up the overwhelming majority of cases brought by asylum seekers.

PaulieBoy

L1011 wrote: »

I'm not.

With this untested by the SC, there will be significantly more challenges/appeals/whatever word you want than if it had been

There are two distinct legal challenges 1) An asylum seeker can challenge a decision in his/her case. 2) An asylum seeker can challenge the constitutionality of the legislation under which his/her decision was made. Had The President referred the legislation to the S.C then had the S.C. declared the legislation constitutional the legislation would be immune from any further challenge.

Fred Swanson

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jd

Fred Swanson wrote:

Presidents seem to be very adverse to referring legislation these days.

Rightly so, I think.

Dandelion6

jd wrote: »

Rightly so, I think.

Yes. According to the Times report some members of the Council of State felt the bill might be unconstitutional but thought this should be addressed by individual challenges, possibly due to the risk of the SC upholding it if it was referred under Article 26. Begs the question of whether Article 26 itself is fit for purpose, or at least the permanent insulation it provides. That's probably a subject for another thread though.

Fred Swanson

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Carawaystick

Fred Swanson wrote: »

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I think its the whole act, which is why Art26 challenges are rare.

It's hard for a comprehensive challenge to the act in a limited timeframe. So recently only obviously repugnant acts have been referred - Mary Harney retrospectively appropriating nursing home care for example.

jd

It protects the whole act. So Offences Against the State (Amendment) Act 1940 cannot be challenged constitutionally. I'd say MDH is quite mindful of this.

.. the powers of internment contained in the Offences Against the State (Amendment) Act 1940. One must frankly state that such provisions are not compatible with the rule of law and the Act survives constitutional challenge thanks to a 1940 Supreme Court decision. The constitutionality of this Act almost certainly cannot now (for highly specific technical reasons) be re-challenged...

coylemj

Fred Swanson wrote: »

This post has been deleted.

jd wrote: »

It protects the whole act. So Offences Against the State (Amendment) Act 1940 cannot be challenged constitutionally. I'd say MDH is quite mindful of this.

The Offences Against the State Act was probably referred to the SC in it's entirety but if you read the relevant sections, the President doesn't have to refer an entire bill to the SC so it would be possible to end up in a situation where only part of a bill was subject to the test and others not at all. It all depends on what the President asks of the SC...

26.1.1 The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof.

Note 'specified' provision or provisions meaning that the President could, for example, ask the SC: 'is section 25 of this bill in accordance with the Constitution?'

And then .....

26.2.1 The Supreme Court consisting of not less than five judges shall consider every question referred to it by the President under this Article for a decision, and, having heard arguments by or on behalf of the Attorney General and by counsel assigned by the Court, shall pronounce its decision on such question in open court as soon as may be, and in any case not later than sixty days after the date of such reference.


Note the reference to 'every question', it's not necessarily a blanket examination of the whole bill.

And if the SC determines that that provision or provisions are in accordance with the Constitution, the President can sign the bill but only those provisions examined by the SC are immune from a future challenge....

34.3.3 No Court whatever shall have jurisdiction to question the validity of a law, or any provision of a law, the Bill for which shall have been referred to the Supreme Court by the President under Article 26 of this Constitution, or to question the validity of a provision of a law where the corresponding provision in the Bill for such law shall have been referred to the Supreme Court by the President under the said Article 26.

So if the President only refers specific provisions of the bill for examination by the SC and they pass the test, the bill will be signed into law and the rest of the act will be open to a constitutional challenge in the High Court and beyond.