It is easy to be wise after the event. I am not laying the blame on anyone else. However, I am not trying to cover up any personal embarrassment on my part.
I want to lay to rest some of the myths and misstatements that have grown in certain public commentaries on this Bill. It is a straightforward exercise in transposing in large measure the content of the aliens orders into the form of a primary statute on a temporary basis to ensure a law in the short term. This is not draconian or punitive legislation. Since 1935, there has been largely one single set of rules regarding aliens. There has not been a Nazi-type immigration regime in Ireland. There have not been laws that have ground down people or been used arbitrarily. When some people saw this Bill reintroduced, they claimed that no civilised society could have these laws. These laws have been in place in large measure for the past 60 years. In that time, nobody has ever claimed that the law was Nazi jackboot-like and draconian. The florid language suddenly emerged because, for the first time, people who have been snoozing in a dreamland have to confront the law of the land.
It is innate in any parliamentary democracy and constitutional sovereign state such as ours that the Executive or Government must have the right to control entry into its territory through its various agents and apparatus. That is an inherent duty, rather than a power, of a sovereign government. One could not say one was discharging one's duties as a Government unless one undertook that obligation. Therefore the legislative underpinnings in place at present are an enlargement and outworking of an inherent power residing in the Executive. It is not something which depends entirely on statute. When it is set down that foreigners in our midst should have identification and a permit authorising them to be in Ireland, which is perfectly reasonable, and it is provided that gardaí can both ask them to produce that identification and arrest those who cannot account for themselves, then a statutory basis is needed to do so. The inherent power of the State to protect its borders does not extend to a Minister for Justice, Equality and Law Reform or Government deciding by decree that gardaí can demand people's identification cards or arrest and detain those people.
The Bill addresses the practical realities of both operating immigration controls at our ports and airports, as was done before, and renewing the permissions that non-nationals who comply with our laws already have. These are conditions non-nationals expect anywhere in the world. They are not being asked to submit to a draconian regime in Ireland which is not found elsewhere. The Bill also takes the opportunity, in somewhat more modern language, to omit some of the more arcane and outmoded provisions in the Aliens Order 1946.
Some of the criticisms which have been voiced are based on the misapprehension of the relationship in law between a non-national and the State. The position recognised and confirmed by the courts is that, subject to two categories of exception to which I will refer later, a non-national has no right to be in our State and that permission to enter is in law a concession or privilege bestowed on the non-national by the State by virtue of its sovereign power. Control of non-nationals entering a state is a valuable and essential tool at the disposal of every sovereign state for the protection not only of its territory but of the people who lawfully live in that territory. This has long been universally recognised.
In the Irish context this position is supported not least in two key judgments of the High Court — Pok Sun Shum and Osheku — where it was recognised as far back as 1986 that the State has extensive obligations to control the entry and presence of non-nationals in the interests of the common good. These cases have been quoted by the Supreme Court with approval, not least in last year's landmark case of L and O concerning Irish-born children, and in the context of the Article 26 referral of the Illegal Immigrants (Trafficking) Bill 2001. In the latter case the Supreme Court, in referring to the 1986 judgments, said they reflected "an inherent element of State sovereignty over national territory long recognised in both domestic and international law".
The Supreme Court has also held that immigration powers can be exercised by the Executive in the absence of legislation and the position has for many years been that the Legislature has chosen to legislate for the procedures governing the exercise of the executive power in immigration matters. I refer to the Aliens Act 1935, which is statutory, and the Aliens Order 1946, which is a statutory instrument, as well as the many amending orders made under that Act to those orders.
All that legislation came under scrutiny in the 1999 Laurentiu case when the Supreme Court found that the manner in which the 1935 Act had conferred power on the Minister to make secondary legislation, the aliens orders in this case, in respect of deportations was inconsistent with the 1937 Constitution. To deal with the situation the Oireachtas enacted the Immigration Act 1999, which included a provision in section 2(1) that every aliens order made before the passing of the 1999 Act under section 5 of the Aliens Act 1935 was to have statutory effect as if it were an Act of the Oireachtas. The aim was to protect the provisions of the aliens orders from a further finding similar to the Laurentiu case.
In the Laurentiu case it was said, in effect, that one cannot simply give a Minister wide-ranging powers without laying down policies and objectives in legislation. One cannot simply say the Minister can do whatever occurs to him in the national good and make orders which affect people's rights. There was an impermissible delegation of legislative function to the Minister under the Aliens Act 1935. In the 1999 Act the opportunity was taken by Members to try to put right what happened in the Laurentiu case and to say that what was in those orders should have the effect of law.
The High Court judgment of 22 January, which is the immediate trigger for this Bill, concerned further questions relating to the validity of the 1935 Act and the 1946 order. The court found that there was no basis in the 1935 Act for the provision of the 1946 order relating to the imposing of a condition on a non-national's permission to enter the State as to duration of stay. That was an omission. Although there was authority to deal with the fact that the person came in, the 1935 Act did not confer the power to make laws on the duration of the stay. The court also found that another aspect of the 1946 order, relating to the power of an immigration officer or a garda to ask non-nationals to produce identity documents, was invalid. Most significantly, the court found that the formulation of words used in section 2(1) for providing that the aliens orders, as amended, should have the force of law as if they were an Act passed by the Oireachtaswas an unconstitutional method of creating statute law.
The practical effects of the judgment go to the heart of the immigration control function as exercised in the State with regard to non-European economic area nationals. Every aspect of the immigration controls thought to be addressed by the 1946 order is now either without a statutory basis or so open to challenge as to render those controls extremely difficult to operate. As recently as yesterday there were fresh High Court proceedings relating to these matters.
The areas dealt with by the aliens orders include the appointment of immigration officers; immigration controls on non-nationals entering or seeking to enter the State, including refusal of leave to land; permission to remain in the State, including conditions covering whether the non-national is permitted to work and the duration of stay; Garda registration of non-nationals; powers to check non-nationals for evidence that they are permitted to remain in the State; and the power to charge non-nationals for breaches of their permission to remain or for illegal presence in the State and to arrest and detain them for such offences.
The implications extend well beyond the question of managing the practical entry of non-nationals into the State. There are also practical implications for many of the 128,000 non-nationals who live in Ireland, the vast majority of whom are here legally and are very welcome. There are 128,000 people in current registration with the Garda and the laws under which they are registered are now seriously undermined by virtue of this High Court decision. It is for us to put that right.
It is reasonable for a non-national to expect, when seeking a re-entry visa for return to the State after a trip back home, that he or she can rely on the documents and passport stamps provided by the State's immigration systems to back up that application. When seeking to become naturalised, he or she can show that they have been lawfully in Ireland for the length of time necessary for naturalisation. However, that can no longer be the case if the law is invalid or if a cloud of doubt hangs over it. We must address this matter.
The judgment also has longer-term implications for the Legislature in that it appears to rule out the possibility of legislating by reference to a text not appearing in the Bill in question. This does not just apply to aliens orders. For instance, it has long been the practice in the House with restrictive practice orders to confirm orders made by Ministers as subsequent to sections in a confirming Act, saying they should have the effect of law. The High Court judgment casts doubt on past cases where that legislative tactic was adopted and raises some serious questions for the House.
It is the Government's intention to appeal the judgment to the Supreme Court. However, as in the course of business in the House, there are sometimes delays in the court system. It is unlikely that the Supreme Court decision will be handed down in the very short term. Even if the appeal is determined in the State's favour, in the intervening period the status of immigration law and, in particular, the power to exercise controls on the entry of non-nationals into the State and on their stay here, would at best be in a state of uncertainty. There is no stay on an appeal in regard to a declaration of unconstitutionality. If the High Court rules that a Bill is unconstitutional, I cannot say I am appealing it andtherefore I am going to operate it; it is quite the reverse. As soon as that declaration is handed down, I have to obey it, unless and until the Supreme Court differs with the High Courton it.
The remaining parts of the aliens order are vulnerable and open to challenge. Even as we debate this legislation, injunctions are being sought by non-nationals arriving at our ports seeking to enter. This is not a fanciful or contrived emergency, it is real. Accordingly, it is necessary to take what is essentially an emergency step to address the situation arising from the judgment of 22 January. The effect of the Bill is to restate in primary statute, and with the minimum necessary changes, the contents of the Aliens Order 1946 as it was presumed to be in effect up to the day of the High Court judgment. As I said earlier, there will be a time for more considered reflection as to whether we can move it this way or that and take different decisions on it. We do not have weeks and months in which to put together a legislative arrangement.
With the exception of the question of fees, all the elements of the aliens order have been part of immigration law up to the present, either exactly as they appear in the Bill or with minor adaptations to modernise its presentation. What we have done in preparing this Bill is to take what, up to the time of the judgment, was thought to be the law as set out in the aliens orders and, as given effect to by section 2 of the Immigration Act 1999, as if it were a primary statute, and to put that into the form of this Bill. For completeness, some elements have been drawn from other sources, thus elements, some based on provisions of the Aliens Act 1935 but mainly from more modern statutes, are pressed into the service of the Bill. The opportunity is being taken to either modernise or drop altogether some of the more obviously anachronistic elements of the law as expressed in the 1946 order.
A number of Deputies have tabled amendments, which I have begun to go through conscientiously. I will accept any of them I consider to be right in drafting and substance. It is my intention to accept Opposition amendments or produce a slightly tidied up version in substitution for them because, as I said earlier, this is something we have to get right. Even though I envisage this as a short-term measure, I do not want it said of me that I rejected something worthwhile simply because of the source of the proposal. I want to be open and inclusive in my approach.
In going through Opposition amendments yesterday, I noted points from each of the three parties which had tabled amendments that I was disposed to accept. I will explain them at a later stage. I say this in case everyone thinks I am coming in here with the intention of running things through without listening to what has been said. I also listened to what was said by the various lobby groups and the Human Rights Commission. I do not agree with all I have heard, but I am trying to do my best to ensure that in the short time available to us we come up with a good Bill, bearing in mind that it is being done in a very short timeframe for the very good reasons I mentioned before.
I want to say one thing about the European Convention on Human Rights. We passed into law a Bill which stated that all laws passed both before and after it should be interpreted, as far as possible, in a manner compatible with the European Convention on Human Rights. People have suggested that we should somehow marry the two Bills together. We do not have to make a ritual statutory obeisance to the European Convention on Human Rights any more. Every Bill we pass, unless its content is specifically incompatible with this Act, is to be interpreted and applied in a manner which is ECHR compatible. When people ask how various legislative proposals comply with the European Convention on Human Rights, they should bear in mind that the courts and every legislative and executive institution of the State is bound to apply the law in a manner which is ECHR compatible. If, for instance, it is part of ECHR law that a particular power should only be used in a proportionate manner or some other such provision, this will be implied in the law once it is passed because the House has said that in future its laws are to be read in this way.
I do not propose to give a section-by-section account of the content of the Bill. The Bill and its explanatory memorandum largely explain themselves. If there are particular concerns, we can cover them on Committee Stage. However, section 5 is worthy of special mention. This sets forth in clear and simple terms the difference between mere presence in the State and lawful presence in the State. Although we have had statutes governing the presence of non-nationals in the State since its foundation, this is the first statutory expression of the distinction between mere presence and lawful presence. The courts have, particularly in recent cases, been clear in their expression of the lawfulness of a non-national's presence in the State where that presence is in accordance with the terms of a permission given by, or on behalf of, the Minister. This is now enshrined in section 5(1). The courts have been equally trenchant in their expressions on the other side of this particular coin, namely, that a non-national who is in the State, otherwise than in accordance with the terms of a permission given by, or on behalf of, the Minister, is for all purposes unlawfully in the State. That is what subsection (2) says. One is either here in accordance with a permission or not. We are now dividing non-nationals into two clear categories; those who are lawfully here and those who are not lawfully here.
People have said that because this Bill replicates the old law, those convicted of offences which carry more than a year in prison may be refused entry to the State, that Nelson Mandela could be refused entry to the State. That is a point, but let us remember the following. This morning we heard it said that people who lived under punishing dictatorships would be refused entry by an immigration officer. Everybody who comes here as an asylum seeker under the 1951 Refugee Convention is not comprehended by the terms of the legislation. I want to make this clear. The Bill specifically acknowledges that people coming to Ireland claiming protection cannot be rejected on the grounds that they have been convicted by some dictatorship or sentenced to Robben Island for life for treason or whatever. I want to make this clear because these things are trotted out as serious propositions. This legislation is not a derogation from our obligations to refugees under international law and does not seek to do so.
