S. [a minor] & Ors -v- MJELR & Ors, [2010] IEHC 31 (2011)

Docket Number:2009 763 JR
Party Name:S. [a minor] & Ors, MJELR & Ors
Judge:Hogan J.








JUDGMENT of Mr. Justice Hogan delivered on the 21st January, 2011

  1. In these judicial review proceedings the applicants have brought a motion whereby they seek to amend the grounds by which they challenge the validity of a deportation order made by the Minister for Justice, Equality and Law Reform. As we shall presently see, this motion in fact presents a vitally important issue of law concerning the inter-action of the Constitution and the European Convention of Human Rights. Before examining this question it is necessary first to set out briefly the background to these proceedings.

  2. The first applicant is an Irish citizen who born here on 24th September, 2003. The second applicant and third applicants are Nigerian nationals. The first and second applicants are the children of the third applicant. In June, 2009 the Minister for Justice, Equality and Law Reform made separate deportation orders in respect of the second and third applicants. The validity of these deportation orders is the critical issue at the heart of these proceedings.

  3. In the proceedings as originally constituted the applicants contended that their right to an effective remedy contained in Article 13 ECHR had been infringed in that the common law substantive judicial rules (review for reasonableness, rationality and proportionality) did not allow (or, at least, did not sufficiently allow) the High Court when exercising its supervisory jurisdiction to engage in a merits based review of these decision. These rules were said to be legally defective in other respects in that, for example, it is contended that, unlike the present law and practice in judicial review matters, this Court should have the right to receive and consider additional evidence over and above that which was before the Minister when he made the original deportation orders.

  4. To that end, the applicants sought a declaration of incompatibility under s. 5(1) of the European Convention of Human Rights Act 2003 (“the 2003 Act”) in respect of these common law rules. When this case was first opened before me, I raised the question with counsel for both parties as to whether the applicants were entitled to seek this relief on a free standing basis or whether, alternatively, they were first obliged, consistently with the language of s. 5(1) itself, to demonstrate first that no other remedy was, in the language of the sub-section, “adequate and available”. The proceedings were then adjourned to enable the applicants to bring a motion whereby, even at this very late stage, they could apply to amend the proceedings to enable them to challenge the constitutionality of the common law rules. This is the motion before me now in which I am required to consider the question of whether the pleadings should be so amended.

    Section 5(1) of the 2003 Act

  5. Perhaps the first thing to consider for this purpose is whether these applicants would be in a position to seek a declaration of incompatibility in the absence of a challenge to the constitutionality of the common law judicial review rules. Of course, it is clear from the Supreme Court’s decision in McD v. L. [2009] IESC 81 that the European Convention of Human Rights (“ECHR”) does not have direct effect in Irish law and that the Constitution remains the primary vehicle whereby fundamental rights are to be secured and vindicated. Indeed, the Long Title to the 2003 Act says as much. Moreover, as both Murray C.J. and Fennelly J. pointed out in McD. v. L, the ECHR is only law to the extent and insofar as the Oireachtas has so determined pursuant to Article 29.6 of the Constitution. Thus, in the words of Murray C.J.:-

    “....the Convention is not directly applicable as part of the law of the State and may only be relied upon in the circumstances specified in the European Convention on Human Rights Act of 2003.”

  6. As I observed in my own judgment in RX v. Minister for Justice, Equality and Law Reform [2010] IEHC 446, the Oireachtas did not intend that the ECHR should operate as a form of parallel constitution which in some way supplanted the Constitution or vied for supremacy in the hierarchy of legal norms created by the Constitution. If that had been intended, then a constitutional amendment along the lines of Article 29.4.6 - such as was done to secure the supremacy and direct effect of the EU law - would have been necessary. In the absence of such a constitutional amendment, the Oireachtas must therefore be taken to have intended that recourse to the ECHR would operate at sub-constitutional level as form of supplementary protection in the - hopefully rare - event that the Constitution’s protections fell short of the standards required by the ECHR itself.

  7. This is reflected in the language of s. 5(1) of the 2003 Act itself:-

    “In any proceedings, the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of section 2, on application to it in that behalf by a party, or of...

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