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  • the European Court of Justice in case 286 02 Bellio v Prefettura de Treviso Answer Not necessary to answer this but in any event No There was a second set of questions on which Kelly J found it unnecessary to pronounce and in respect of which there is no appeal Issues on appeal I believe that the issues as they now appear before the Court can be reduced to two simple headings 1 The first very obvious issue is whether the 2000 Regulation the only legal authority cited in any of those documents authorised the issuing of the instructions and notices This is independent of the question of whether the Minister had the evidence required to justify those actions It is true that Albatros did not make this point in its initial correspondence but the order granting leave to apply for judicial review clearly raised it It is also convenient to decide under this heading the linked question of whether the Minister is entitled to rely on other powers not cited in the instructions or notices 2 The second issue concerns the evidence Assuming that the Minister had power to issue the various instructions and notices and assuming also that she only had the evidence of the presence of bone spicules was she authorised to issue those notices and instructions This combination presents a dilemma The Court has been informed that the applicable Regulations have been amended to cure any defect in the Minister s powers to issue the instructions and notices Thus the Minister s interest in the proceedings is limited to defending the action taken in this case and to resisting any claim for damages and of course costs But the first question has no longer term significance for the exercise of the Minister s powers On the other hand the Minister says that the second issue has potential future relevance It may be important in other cases to know whether the presence of bone spicules without direct evidence of processed animal proteins will justify the sort of actions taken Nonetheless it seems to me that it is necessary to address the second question only if a positive answer is given to the first If the Minister had no power under the 2000 Regulation to issue recall instructions or search and seizure notices it does not matter whether the product was allegedly contaminated with processed animal protein or merely with other irrelevant and harmless foreign matter If she had not the power she could not do it The Minister has in her written submissions on the appeal provided a highly detailed and necessarily complex explanation of a number of interlocking and interconnected instruments of European Community law relating to the testing of animal feedstuffs and their ingredients While it would be normal to commence an analysis of the appeal with the appellant s arguments I am satisfied that such an approach would tend rather to confuse than to clarify the rather stark question which faces the court I propose therefore to examine firstly the nature of the powers actually exercised by the Minister and then to look at the 2000 Regulation Albatros is a company lawfully carrying on a business of importation and distribution of foodstuffs It must naturally submit to the requirements of the law regarding the examination and control of the products it handles As a licensed trader it will be expected to familiarise itself with any applicable regulations and to cooperate with the responsible administrative authorities It is an obvious corollary that the trader is entitled to know what powers those authorities may exercise By issuing the instructions dated 18th and 25th November 2004 the Minister required Albatros to Issue a written instruction to every customer to whom they had sold the product stating that it must not be sold or used as a feeding stuff or feed ingredient In the case of retailer customers issue a written instruction requiring that they initiate a recall of all contaminated materials sold and that they compile a list of the names and addresses of these customers along with the quantity and dates of delivery Arrange for the immediate recall of all unused product from customer premises By each of the Seizure and Detention Notices the officer of the Minister proclaimed that he was seizing the product described Furthermore each notice required Albatros to detain the product and to ensure that it was not put into circulation or continued in circulation These are drastic steps They deprive the trader of possession of his property They destroy the trader s right to sell the subject product If it is a perishable product they are liable to have the effect of destroying the product itself They rupture the trader s relations with his customers They require him without explanation as to the legal basis for that action to issue peremptory instructions to his customers To state that the exercise of such powers by the Minister would require to be justified by clear legal authority is obvious to the point of being beyond argument Moreover a trader in receipt of such notices emanating from and bearing the purported authority of a government Minister is likely and probably entitled to assume that they have been lawfully issued Where the rule of law governs relations between government and citizens an individual person or company will reasonably expect that decisions purporting to be made under governmental authority will be clothed with the necessary legislative powers In the present instance each one of the documents at issue proclaims as its legal authority the European Communities Processed Animal Protein Regulations 2000 S I 486 of 2000 Since that constitutes the purported legal authority for what I have described as the drastic actions of the Minister it must be scrutinised to see whether it purports to confer on the Minister power to order the recall removal from circulation seizure or detention of products mentioned in the 2000 Regulation The 2000 Regulation was made pursuant to s 3 of the European Communities Act 1972 for the purposes of giving effect to Council Decision 200 766 E C of 4th December 2000 and the subsequent Commission decision providing for the implementing control measures It came into operation on 1st January 2001 Since the subject matter of the Regulation as indicated in its title is principally concerned with processed animal proteins it defines that term as meaning Meat and bone meal meat meal bone meal blood meal dried plasma and other blood products hydrolised proteins hoof meal horn meal poultry offal meal feather meal dry greaves fish meal dicalcium phosphate obtained from defatted bones gelatine and any other similar products including mixtures feeding stuffs feed additives and pre mixtures containing these products Article 3 lays down a general prohibition against processed animal proteins being fed to farmed animals Article 4 makes it an offence to alter fraudulently or use various documents issued or granted under the 2000 Regulation Article 5 prohibits subject to exceptions which are not relevant both the import and export of processed animal proteins both from and to Member States of the European Union and from and to third countries Article 5 4 prohibits the import of processed animal proteins from a third country unless done pursuant to a licence issued by the Minister Article 6 prohibits a person from being in possession of or having control of processed animal proteins on any land or premises which is used for or in connection with the manufacture of feed stuff or used for or in connection with the holding handling keeping or farming of ruminant animals It also prohibits the incorporation of processed animal proteins into any feeding stuffs intended for feeding to animals other than ruminants except in accordance with a licence granted by the Minister Article 7 provides for the licences which may be issued by the Minister from time to time Article 8 provides for the appointment by the Minister of authorised officers for the purpose of the regulations Article 9 provides that the provisions of the European Communities Animal Nutrition Inspections Regulations 2000 S I No 4 of 2000 shall apply to inspections undertaken by an authorised officer for the purposes of the regulations Article 10 creates a number of offences Many are of a purely regulatory nature and not relevant The offence that is most potentially relevant is that which provides 1 Any person who a contravenes Regulation 3 prohibition against feeding to animals 4 Fraud regarding documents 5 import or export of processed animal proteins or 6 possession or use of processed animal proteins of these Regulations b and c are nor relevant shall be guilty of an offence Article 10 7 provides A person guilty of an offence under this Regulation shall be liable on summary conviction to a fine not exceeding 1 500 or imprisonment for a term not exceeding 6 months or to both such fine and imprisonment In essence the Regulation creates prohibitions on the feeding import export or possession of processed animal proteins save in circumstances where such activities are carried out with a licence issued by the Minister The Regulation then creates a series of offences in respect of their contravention and prescribes penalties upon conviction The 2000 Regulation does not purport to confer any power on the Minister in respect of feedingstuffs believed to be contaminated with processed animal proteins other than a power to grant a licence to import export put into circulation manufacture feedingstuffs containing processed animal proteins or feed to farmed animals feedingstuffs containing processed animal proteins Indeed the 2000 Regulation contains no mention of contamination It is clear beyond argument that the Minister had no power pursuant to the 2000 Regulation to issue the instructions of 18th and 25th November 2004 or any to the Search and Detention Notices The Minister has invited the Court nonetheless to interpret the 2000 Regulation as conferring the powers in question interpreted in the context of a number of European instruments which I will discuss later Could the Minister nonetheless justify these actions by reference to other powers and consequently by reference to powers of which no notice was given to Albatros Kelly J pointed out in his judgment that there have been cases where it has been held that the legal authority for an official act should be stated on the face of the relevant instrument He cited Kajli v Minister for Justice Unreported 21st August 1992 D P P v Dunne 1994 2 I R 537 State Holmes v Furlong 1967 I R 210 and Movie News Limited v Galway County Council High Court 30th March 1973 These cases are all cited in Hogan and Morgan Administrative Law in Ireland 3rd Ed Page 434 as examples of cases where orders affecting fundamental rights had been set aside for failure to show jurisdiction on their face However as Kelly J pointed out this is not a case of failure to show jurisdiction All the relevant instruments cite the 2000 Regulation expressly and exclusively as the legality authority upon which they rest The State here purports to justify drastic intrusion into individual property rights and cites legal authority for doing so The cited legal authority does not authorise those actions In these circumstances I agree with the reasons given by Kelly J for rejecting this part of the Minister s case He asked himself whether it was open to the Minister to seek to sustain the Instructions on a basis other than the Regulations He answered In my view it is not Actions of the type in suit affect property rights They also create the possibility of a criminal liability if disobeyed They must be soundly based in law and when documents are served giving effect to them they must show the jurisdiction which is being relied upon Having done so it is not in general open to the decision maker to rely upon a different jurisdictional basis for the action taken If that were to be permitted there could be little legal certainty in respect of the exercise of any such powers In the present case it appears to me to be particularly appropriate not to permit the Minister to rely upon powers other than those in the Regulations cited by her That is so not merely because of the commercial and possible criminal consequences for Albatros but also because no form of appeal is allowed internally or externally from the Instructions Judicial review is the only remedy available to an aggrieved party No compensation is available to Albatros in respect of the Instructions It would in my view be wrong for the court to permit the Minister to change her stance as to the legal basis for the Instructions now I agree fully with that statement Indeed I think it is fair to say that it was not seriously contested on appeal The circumstances of the present case lead inexorably to the conclusion that the Minister should be held to the legal authority for the action taken The Minister in her appeal has presented an elaborate and complex argument requiring that the 2000 Regulation be read with a number of decisions and legislative acts of the European Community In deference to the careful and detailed submissions made by Mr Eoin McCullough Senior Counsel on behalf of the Minister I propose to consider these submissions I must say however that unless the Minister can point to a clearly expressed power to issue instructions to a trader to recall products from the market or for the Minister herself to seize and detain them these arguments are doomed to fail The submissions of the Minister may be summarised as follows The 2000 Regulation was introduced to give effect to Council Decision 2000 766 EC Article 3 1 of that Decision provided that with certain exceptions the Member States were to prohibit the placing on the market the trade in the importation from third countries and the exportation to third countries of processed animal proteins intended for the feeding of farmed animals which are kept fattened or bred for the production of food and are to ensure that such proteins are withdrawn from the market distribution channels and from on farm storage The purpose of that decision was to combat the spread of BSE through animal feed containing contaminated bone and meal That Council decision was replaced by Commission Regulation EC No 1234 2003 of 10 July 2003 which amended various annexes to Regulation EC No 999 2001 of the European Parliament and the Council of 22 May 2001 laying down rules for the prevention control and eradication of certain transmissible spongiform encephalopathies Commission Regulation 1234 2003 also repealed Council Decision 2000 766 EC and provided see Article 3 that references to the repealed Decision were to be construed as references to that Regulation The result of these changes was that the prohibition against the feeding of processed animal proteins to ruminants was that set out in Article 7 and Annex IV of Regulation No 999 2001 which provides Prohibitions concerning animal feeding 1 The feeding to ruminants of protein derived from mammals is prohibited 2 Furthermore the prohibition referred to in paragraph 1 shall be extended to animals and products of animal origin in accordance with point 1 of Annex IV Annex IV as amended by Commission Regulation 1234 2003 provides ANIMAL FEEDING Extension of the prohibition provided for in Article 7 1 1 The prohibition provided for in Article 7 1 shall be extended to the feeding a to farmed animals with the exception of the feeding of carnivorous fur producing animals of a processed animal protein b to f not relevant b to ruminants of animal protein and feedingstuffs containing such protein It also provides in amended form E The competent authority shall carry out documentary and physical checks including tests on feedingstuffs throughout the production and distribution chain in accordance with Council Directive 95 53 EC 2 to control compliance with its provisions and the provisions of this Regulation Where any presence of prohibited animal protein is detected Council Directive 95 53 EC shall apply According to the Minister s submissions this latter provision deals with with enforcement It was also pointed out that each Regulation is binding in its entirety and directly applicable in all Member States Article 249 of the EC Treaty The Minister s submissions turned then to Council Directive 95 53 EC of 25 October 1995 fixing the principles governing the organization of official inspections in the field of animal nutrition which is mentioned in the last citation from Regulation 1234 2003 Article 1 of Directive 95 53 as its name implies sets out the principles governing the organization of official inspections in the field of animal nutrition It requires Member States to carry out regular checks and detailed inspections of affected products and that inter alia they be carried out regularly and without prior notice The Minister draws attention to Article 8 which provides Where the checks show that products do not meet the requirements of the rules the Member State shall prohibit their entry or marketing and order their redispatch out of Community territory it shall immediately inform the Commission and the other Member States that it has rejected the products indicating the infringements found Insofar as this provision may be considered relevant it is right to recall the obvious fact that directives unlike regulations do not have automatic direct effect They depend for their effect on national implementing legislation While there is a well established line of case law permitting direct effect to be allowed for directives as against a Member State or its emanations the converse does not and cannot apply The Minister cannot rely on the direct effect of Article 8 According to the Minister s submissions the final element of the applicable regime is Commission Diective 2003 126 EC which precribes the analytical method to be used in order to detect the presence

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  • difficult or impossible effectively to cross examine two of the deponents on behalf of the respondent the two officials from the office of the D P P without sight of the correspondence and an ability to say whether or not it indeed supports the case made and meets the description given in the affidavits Respondent s case 16 The Director says that the proper approach to the question of prosecutorial delay is not to conduct a micro analysis of every step taken and every direction given or to conduct a complete documentary review Rather there should be a more general analysis of broad periods of time in question and the general steps that were being taken in the investigation He says that if the applicant succeeds in her application then in future every prosecutorial delay case will become a mechanism whereby applicants can penetrate the decision making processes of the D P P and can obtain the D P P file on a case This would undermine the special protection of the Director recently acknowledged in this Court in Dunphy v D P P 2006 1 ILRM 241 The applicant is engaged in a fishing expedition Furthermore although she says she is not seeking the reasons for her prosecution or seeking to attack the special protection available to the reasons for the decision to prosecute she is in fact doing so The Director of Public Prosecutions has only one core function to decide whether to prosecute or not to do so Accordingly all correspondence engaged in by him relates to that core function which is heavily protected at law against any requirement to give reasons for his decisions The Director says the applicant is effectively seeking to appeal or circumvent the recent and authoritative decision in Dunphy and that unsustainable discovery applications that fly in the face of settled Supreme Court jurisprudence but which are nonetheless appealed all the way to the Supreme Court hold an obvious attraction to applicants who have no particular desire to face a trial with expedition 17 In reply the applicant said that the respondent s submissions were based on a misrepresentation of her case She was not seeking the reasons for the decision to prosecute her nor was she challenging that decision She was relying on the delay not seeking to impugn the decision to prosecute She was seeking discovery of correspondence which had been deployed for the purpose of litigation by the respondent himself It was this fact primarily that grounded her entitlement to discovery Decision 18 It will be seen that no suggestion has been made by the respondent that the correspondence in question is irrelevant to the matters at issue in the judicial review proceedings This indeed could hardly be said since the correspondence has been mentioned in the affidavits filed on behalf of the respondent and only in that way came to the attention of the applicant But a strong case is made by the respondent that he should nonetheless not have to make discovery because to do so would undermine his special position in relation to the reasons for his decisions recognised in Dunphy The Director says that this is so even though it would be open to him to claim privilege in respect of any particular item of correspondence or indeed of every item 19 Dunphy was a case of a teenage girl charged with possession of controlled drugs She sought prohibition preventing her trial substantially on the ground that another girl who had been in the possession of the same drugs had not been charged but had been dealt with by caution under the Juvenile Liaison Scheme She said that this disparity of treatment was prima facie evidence of an unfairness in the decision to prosecute her She did not deny however that she herself had previously had the benefit of the Juvenile Liaison Scheme whereas the other girl had not In the course of the proceedings she sought discovery of the respondent s reasons for prosecuting her This was refused both in the High Court and in this Court 20 The portion of my judgment in Dunphy on which the Director principally relies is at page 254 Certain other cases cited were distinguished on the grounds that they related to information which does not attract the special protection available to the Director of Public Prosecution s reasons for a decision to prosecute or not to prosecute In a case where this special protection is relied upon there is a special evidential standard for the applicant as described in the cases cited above This onus must be discharged by any person seeking relief of the sort the applicant seeks here It is of course true that she does not have to discharge that onus at this stage of the litigation but the existence of this unusual onus is important to the resolution of the present issue The granting of discovery even if the applicant failed to get inspection would or might undermine the special protection available to the Director His entitlement to that protection is beyond argument certainly in the Court as at present constituted In order to validate it the applicant must show at least suggestive evidence of an impropriety This has not occurred 21 The applicant here seeks to distinguish Dunphy s case Firstly she points out that it was a request for discovery of the reasons for the prosecution which she does not seek and which are in any event I should imagine clear enough from the Book of Evidence The decision to prosecute itself is not controversial here she says but the reasons for the prima facie inordinate delay are highly relevant She is charged with offences allegedly occurring many years ago which before the Director or the gardaí became involved at all had already been thoroughly investigated by an Expert Group and by a Tribunal of Inquiry The file was in the Director s office for over six years and this is

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  • group were at issue In paragraph 17 of the affidavit he refers to the fact that the presenting officer would have access to all the relevant previous decisions a point to which I have already referred The relevant correspondence is exhibited in the affidavit and I have already made reference to the salient parts of it The affidavit goes on to describe how a decision on the preliminary application was made by the tribunal member and that he found that there was no legal basis for the entitlement to access to previous decisions and he referred to a recent decision of the High Court in this regard The tribunal member did indicate that the chairman was in discussions regarding the publication of previous decisions An affidavit was sworn and filed on behalf of the Tribunal by John English a Higher Executive Officer of the Tribunal In paragraph 9 of that affidavit he said the following The first named respondent does not intend to publish decisions of the refugee Tribunal made prior to the coming into force of section 19 4A of the Refugee Act 1996 or decisions which were made in respect of appellants whose applications for asylum were considered under the statutory scheme in existence prior to the coming into force of section 7 of the Immigration Act 2003 I have been informed by the chairperson and believe that this decision has been made in order to protect the position of those persons who participated in the asylum process in the belief and expectation that the process was absolutely confidential and under a statutory scheme which both ensured and required such confidentiality In the next paragraph Mr English goes on to state The chairperson of the Refugee Appeals Tribunal has decided not to publish any decisions under section 19 4A Refugee Act 1996 at this time and prior to being in a position to decide based on international best practice which decisions if any should be published and which decisions should not be published For this purpose the chairperson has set up a committee which committee comprises of the chairperson a number of tribunal members and a number of members of the administrative staff of the Refugee Appeals Tribunal The deponent goes on to state that the committee were making extensive enquiries in other jurisdictions relating to their systems of publication There the matter rested until this applicant as already referred to was successful in the High Court in his judicial review proceedings The State authorities named above have appealed that decision The Opesyitan appeals I do not find it necessary to give such a detailed history of these appeals as essentially the issues are the same In this particular case the principal applicant the others being her dependants is a widow who claims in her refugee appeal that she should be permitted to remain in this country because if she is deported to her own country Nigeria her second eldest daughter will be subjected by her husband s family to circumcision and her sons to ritual markings At a consultation this applicant s counsel advised that there were two previous decisions of the Tribunal which related to a similar issue and were relevant One of these decisions was by Ms Sunniva McDonagh B L and the other by Mr Michael O Kennedy S C In correspondence the applicant s solicitors primarily relied on section 19 4A a of the 2003 Act notwithstanding its negative wording as making it mandatory for the chairperson of the Tribunal to publish decisions of legal importance In their letter of the 14th September 2004 and indeed in an earlier letter of the 30th August 2004 they had made it clear that these previous decisions were in their view of general legal importance and of particular relevance to the appeal In a letter of reply the Tribunal maintained that the chairperson had been consulted and that he considered he had no obligation under section 19 4A to publish A more detailed letter was written by the solicitors on the 16th November 2004 That letter contains the following paragraph We submit that the decision of Oke is of legal importance in that we understand it includes a finding that the treatment of widows in some cultures may constitute persecution on the basis of membership of a social group for the purposes of section 2 of the Refugee Act 1996 We submit that the decision in Manyara is of legal importance because we understand it includes a finding that a fear of female genital mutilation can cost due to well founded fear of persecution for the purpose of section 2 of the Refugee Act 1996 It is our submission that these findings are of general legal importance in that the underlying principles may be applicable in a considerable number of cases We further submit that these cases are specifically relevant to the factual basis of the claim made by our client The Tribunal however merely reiterated its position It was made clear in correspondence and in the affidavits that the applicant was not requiring the identity of the applicants the subject matter of the two decisions to be in any way disclosed so that the request would not have involved any confidentiality issues In an affidavit sworn by Mr Brendan Toal of the firm of solicitors acting for the applicants he makes the important submission at paragraph 5 of the lack of equality of arms a point which the other applicants had also made I quote the paragraph in full I further say and believe that the Tribunal s past decisions are available to the Office of the Refugee Applications Commissioner which said office is represented at oral hearings before the Tribunal by persons known as Presenting Officers I say that it is in breach of the applicants right to fair procedures and equality of arms if they are denied access to previous tribunal decisions whilst the Office of the Refugee Applications Commissioner which will oppose the appeal has access to all previous decisions Lest there be any doubt in my experience it is the practice of Presenting Officers to oppose an appeal in a manner that is adversarial Mr Toal goes on to make the point that the Tribunal s decision not to publish decisions on appeals was in contrast to the policy adopted by the other common law jurisdictions These applicants then instituted judicial review proceedings with leave There were seven grounds set out in the statement of grounds for the relief sought In addition to relying on section 19 4A of the Refugee Act 1996 as inserted by the 2003 Act there were certain other general grounds the most relevant one being the first named respondent has acted unlawfully and in breach of the applicant s right to constitutional and natural justice and fair procedures The position maintained by the Tribunal is clearly stated in the statement of opposition and in particular paragraph 2 thereof which reads as follows The Refugee Appeals Tribunal is not required to make available to the applicants previous decisions of the Refugee Appeals Tribunal whether by virtue of section 19 4A Refugee Act 1996 as inserted or otherwise Unlike the Atanasov case these appeals and the appeal with which I am about to deal postdate the 2003 Act and therefore if that Act is relevant no point can be taken against these particular applicants that there can be no retrospectivity It will become clear in this judgment that having regard to the approach I am adopting the retrospectivity issue does not arise The Fontu appeal The same solicitors acted for this applicant as acted for the Opesyitans The procedural history therefore is almost identical The solicitor indeed tried to persuade without success the Tribunal to permit his other case to be taken as a test case and indeed later when he discovered the existence of the Atanasov case he suggested that that be the test case These requests were all refused and that is why there are three separate judicial review applications The important letter of request in this case was dated the 24th December 2004 It requested the publication of any decision of legal importance pertinent to the issues in the case but in particular pertinent to whether and in what circumstances forced marriage of young girls is persecution within the meaning of the Refugee Act 1996 and the Geneva Convention At that stage the claim was made solely on the basis of section 19 4A of the Refugee Act 1996 as inserted by the 2003 Act This applicant is from the Cameroon and the issue in the case is essentially the issue of forced marriage Following the same history of refusal judicial review proceedings were instituted As in the previous case this applicant did not exclusively rely on section 19 4A in the statement of grounds but in the alternative claimed that even if the Act did not place a mandatory obligation on the Tribunal the policy of the Tribunal was unconstitutional and incompatible with the European Convention on Human Rights Again as in the previous case quite apart from the grounds based on the section 19 4A the ground was put forward that the Tribunal had acted unlawfully and in breach of the applicant s right to constitutional and natural justice and fair procedures The judgment of the High Court MacMenamin J in his reserved judgment which was a combined judgment for all three appeals has exhaustively reviewed the relevant case law relating to fair procedures required by the Constitution I gratefully adopt his analysis in so far as it relates to those matters and I do not find it necessary to cover that territory again I intend to go straight to the basis of the actual decision of MacMenamin J At first sight the basis of the decision appears to be that section 19 4A a b of the Refugee Act 1996 as inserted by the Immigration Act 2003 must be given a constitutional interpretation and that when given that interpretation and notwithstanding the negative fashion in which the provision is drafted the Chairman of the Tribunal is not just given a capacity to publish or not to publish but that the provision impliedly incorporates what the learned judge calls a correlative positive discretion which has to be exercised having regard to principles of fair procedures to publish decisions which are of legal importance In short although the statutory provision by its express terms authorises the Chairman not to publish decisions which are not of legal importance there is by reason of that very wording an implied statutory obligation to publish those that are of legal importance The learned trial judge went on to hold that that being his view the Opesyitans and Miss Fontu were entitled to an order that they be provided with the relevant decisions being sought The judge accepted that the provisions of that amending Act could only apply prospectively and that its provisions could not therefore be invoked by Mr Atanasov The learned trial judge however then goes on to state the following However by virtue of their having asserted a constitutional entitlement on the basis of natural justice and fair procedures but not otherwise each of the applicants are sic entitled to obtain copies of relevant and material decisions which may be of importance or identified decisions which may come within that category Thus while the statutory discretion vested in the Chairman is prospective in nature the specific constitutional right of the applicants should but by virtue of the assertion of such right be seen as applicable to decisions relevant to these cases It must be stressed therefore that the applicants are entitled to rely on this right in these applications only by virtue of their timely assertion of the right before the Tribunal From that passage it can be understood why I have some difficulty in identifying the exact basis of the judge s decision But I have come to the conclusion that when properly analysed it is both reasonably clear and in fact correct Although the learned judge holds incorrectly in my view that the statutory provision notwithstanding its negative wording impliedly imposes a correlative positive obligation this does not seem to be the ultimate unifying factor in his decision In my view his judgment is firmly based on the constitutional entitlement to natural justice and fair procedures and not on the statute as such That is why all three applicants obtained judicial review notwithstanding that the claims of one of them predated the 2003 Act Decision I have arrived at the same conclusion as the learned trial judge but by a slightly different route As to what kind of fair procedures the Constitution may require in any given instance will always depend on the particular circumstances and in the case of tribunals as to what constitutes fair practice may greatly differ The refugee appeals are heard by single members of the Tribunal taken from a large panel The Chairman of the Tribunal assigns a particular member of the Tribunal to hear a particular appeal It is of the nature of refugee cases that the problem for the appellant back in his or her country of origin which is leading him or her to seek refugee status is of a kind generic to that country or the conditions in that country Thus as in these appeals it may be a problem of gross or official discrimination against homosexuals or it may be a problem of enforced female circumcision or it may be a problem of some concrete form of discrimination against a particular tribe Where there are such problems it is blindingly obvious in my view that fair procedures require some reasonable mechanisms for achieving consistency in both the interpretation and the application of the law in cases like this of a similar category Yet if relevant previous decisions are not available to an appellant he or she has no way of knowing whether there is such consistency It is not that a member of a tribunal is actually bound by a previous decision but consistency of decisions based on the same objective facts may in appropriate circumstances be a significant element in ensuring that a decision is objectively fair rather than arbitrary In Manzeka v The Secretary of State for the Home Department 1997 Imm A R Lord Woolf M R as he then was succinctly summed up the usefulness of previous relevant decisions when he said the following It will be beneficial to the general administration of asylum appeals for special adjudicators to have the benefit of the views of a tribunal in other cases of a general situation in a particular part of the world as long as that situation has not changed in the meantime Consistency in the treatment of asylum seekers is important in so far as objective considerations not directly affected by the circumstances of the individual asylum seeker are involved The learned High Court judge cited this useful observation of Lord Woolf He also cited two earlier passages from his judgment which are worth quoting again The first read as follows Particularly when determining appeals brought where it is necessary to give consideration to the general situation in particular parts of the world it is important for Tribunals when appropriate to give their views as to that situation so far as relevant to claims for asylum in that part of the world In the later passage the judge continued In administering the asylum jurisdiction the Tribunal whether it be a special adjudicator or an appeal tribunal has to consider not only whether the individual asylum seeker has the necessary subjective fear to be regarded as someone who is entitled to asylum but in addition has to be satisfied that fear is well founded Whether or not that fear is well founded involves applying an objective standard emphasis added a standard which will depend upon the state of affairs in that particular country as well as the circumstances of the individual asylum seeker Previous decisions of the Tribunal may be ones which if applied in the appellant s case would benefit the appellant but if there is no access he has no knowledge of them and indeed he has no guarantee that the member of the Tribunal has any personal knowledge of the previous decisions made by different colleagues It does not require an elaborate review of relevant case law and fair procedures to come to the conclusion that such a secret system is manifestly unfair The unfairness is compounded if as in this jurisdiction the presenting officers as advocates against the appellants have full access to the previous decisions That raises immediately an equality of arms issu e The 2003 legislation is in my view enacted against that constitutional backdrop It assumes rather than creates fair procedures To illustrate what I mean by this I think it appropriate to set out the relevant parts of the legislation In its original unamended form section 19 of the Refugee Act 1996 is headed Protection of identity of applicants While an enactment can never be interpreted by reference to its heading it becomes perfectly clear when the section is read that that is the purpose and the sole purpose of it In the original form the section reads as follow 19 1 The Commissioner the Appeal Board the Minister the Minister for Foreign Affairs and their respective officers shall take all practicable steps to ensure that the identity of applicants is kept confidential 2 Subject to sections 9 15 and 26 no matter likely to lead members of the public to identify a person as an applicant under this Act shall be published in a written publication available to the public or be broadcast without the consent of that person and the consent of the Minister which shall not be unreasonably withheld 3 If any matter is published or broadcast in contravention

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  • ordering that this part of the Act shall come into force The Special Criminal Court may hear trials in non subversive crime As Keane J stated in Kavanagh v Government of Ireland 1996 1 I R 321 at p 364 there is nothing to prevent the Government from bringing Part V into force where it is satisfied for the reasons mentioned in the subsection that the Director of Public Prosecutions should have power to require the trial before a special criminal court rather than by a jury of persons engaged in non subversive crime e g where there appeared to be a significant risk that those engaged in organised crime would resort to the intimidation or corruption of juries Section 43 of the Offences Against the State Act 1939 expressly sets out the jurisdiction of the Special Criminal Court it provides 1 A Special Criminal Court shall have jurisdiction to try and to convict or acquit any person lawfully brought before that Court for trial under this Act and shall also have the following ancillary jurisdictions that is to say a jurisdiction to sentence every person convicted by that Court of any offence to suffer the punishment provided by law in respect of such offence b jurisdiction in lieu of or in addition to making any other order in respect of a person to require such person to enter into a recognisance before such Special Criminal Court or before a justice of the District Court in such amount and with or without sureties as such Special Criminal Court shall direct to keep the peace and be of good behaviour for such period as that Court shall specify c jurisdiction to order the detention of and to detain in civil or military custody or to admit to bail in such amount and with or without sureties as that Court shall direct pending trial by that Court and during and after such trial until conviction or acquittal any person sent sent forward transferred or otherwise brought for trial by that Court d power to administer oaths to witnesses e jurisdiction and power to punish in the same manner and in the like cases as the High Court all persons whom such Special Criminal Court finds guilty of contempt of that Court or any member thereof whether such contempt is or is not committed in the presence of that Court f power in relation to recognisances and bail bonds entered into before such Special Criminal Court to estreat such recognisances and bail bonds in the like manner and in the like cases as the District Court estreats recognisances and bail bonds entered into before it The Act provides expressly that the Special Criminal Court has jurisdiction to try and to convict a person lawfully brought before the court for trial It also provides expressly for an ancillary jurisdiction such as to enable recognisances be entered into to admit to bail to administer oaths to punish for contempt and to estreat recognisances and bail bonds The fact that these ancillary matters are expressly stated infers that they should be expressly prescribed by statute This is consistent with the words of Article 38 3 2 The Constitution states clearly that the Special Criminal Courts are for the trial of offences Thus it is limited to the trial of offences The Special Criminal Court is expressly given some ancillary powers by s 43 of the Offences Against the State Act 1939 This section confirms the criminal nature of the jurisdiction of the Special Criminal Court by the ancillary orders it anticipates will be made by that Court No express statutory provision gives to the Special Criminal Court the jurisdiction established under s 4 of the Criminal Justice Act 1994 as amended While I am quite satisfied that not every matter of procedure needs to be expressly provided in legislation before it may apply to the Special Criminal Court the jurisdiction in issue is different in category and character to the trial of offences anticipated by the Constitution and the Offences Against the State Act 1939 It is not a trial of an offence It is a different type of proceeding 6 4 Criminal Justice Act 1994 The power of confiscation created in s 4 of the Criminal Justice Act 1994 as amended is a new type of jurisdiction established under that legislation It does not expressly refer to or give jurisdiction to the Special Criminal Court It provides 1 Where a person has been sentenced or otherwise dealt with by a court in respect of one or more drug trafficking offences of which he has been convicted on indictment the court shall subject to subsections 2 and 3 determine whether the person has benefited from drug trafficking 2 A court may decide not to make a determination under subsection 1 of this section where following such preliminary inquiries if any as it may make it is satisfied that having regard to a the present means of the convicted person and b all of the other circumstances of the case including the matters which are to be taken into account under section 12 3 of this Act the amount if any which might be recovered under any confiscation order which might be made would not be sufficient to justify proceeding with consideration of the making of such an order 3 The duty of a court to make a determination under subsection 1 of this section shall not apply if the convicted person has died or absconded and accordingly the provisions of section 13 of this Act shall apply in such a case 4 If the court determines that the person in question has benefitted from drug trafficking the court shall determine in accordance with section 6 of this Act the amount to be recovered in his case by virtue of this section and shall make a confiscation order under this section requiring the person concerned to pay that amount 5 For the purposes of this Act a

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  • clash between the undoubted public interest in the admissibility in court of all relevant and admissible evidence and the public interest in a particular instance in the non disclosure of some particular piece of such evidence the court had to embark on a balancing exercise so as to consider whether the public interest was in the end best served by disclosure or non disclosure In doing so I was adopting a common law principle rather than invoking any particular provision of the Constitution It is not entirely clear from the determination of the Sole Member as to whether he was likewise as an alternative taking on board common law principles or whether he was in some way intending to incorporate the balancing principle into any privilege which might exist under Article 15 10 Nothing turns on this question however in my view What is important to note is that the Sole Member went on to make a contingent exercise of the discretion referred to by me and in so doing he said that he had no doubt whatever that it was preferable that information which was available to two responsible members of the Oireachtas from individuals believed by them to be reliable and which indicated gross misconduct amounting to criminal misconduct on the part of two assistant commissioners of An Garda Síochána and one detective sergeant should be made available for scrutiny and examination by the tribunal rather than that Deputy Howlin and Senator Higgins be allowed to maintain the confidentiality of their informants He again noted that the information or evidence made available to the informant s might prove or tend to prove the innocence of individuals who had been wrongly convicted He then expressed the view in no uncertain terms that it would be entirely wrong if such information or evidence could be withheld from the tribunal and that its truth could not be inquired into by him in carrying out his duties under the terms of reference I have summarised the findings of the Sole Member Before I move on to what happened in the High Court I should explain briefly the references to Senator Higgins and to the Seanad Originally the same issue arose with Senator Higgins as arose with Mr Howlin Subsequently Senator Higgins s informant gave him permission to disclose his source and as a consequence he no longer became involved in these proceedings The equivalent Seanad committee had passed an identical resolution and had given identical instructions to the same counsel Leave to seek judicial review of the discovery order made by the Sole Member was granted in the High Court by O Neill J on the 24th March 2003 The reliefs permitted to be sought included certiorari in respect of the discovery order and a large number of declaratory orders reflecting the issues which had been argued before the Sole Member By way of permitted amendment to the statement of grounds one of the issues raised in the judicial review was whether the Sole Member erred in law in holding that the innocence at stake exception had any application to a tribunal of inquiry and that he had at any rate erred in law in holding that disclosure of sources was necessary to vindicate the rights of members of the Garda Síochána and erred on the facts in relying on speculation and or hearsay to outweigh the proved or admitted fact of the benefit to the public interest in preserving confidentiality of such sources I have already made clear that when the judicial review proceeding came on for hearing before Kearns J he rejected the arguments of Mr Howlin based on Article 15 13 for the reasons which I have already indicated The learned judge however took a very different view from that taken by the Sole Member when he came to consider Article 15 10 He disagreed with the Sole Member that the assertion of the privilege by counsel instructed by the committees did not constitute the exercise of the power of the respective Houses to protect the private papers of their members Kearns J referred to the alleged requirement to pass a formal motion as suggested by the Sole Member as merely a mechanical requirement and the learned judge later referred to a minor technical infirmity in the wording of the motion of the 6th February 2002 That motion passed in each House had been in the following terms That the Committee on Procedure and Privileges of Dáil Éireann Seanad Éireann Noting Article 15 of the Constitution Noting the privilege enjoyed by members of Dáil Éireann Seanad Éireann in respect of information received from members of the public Noting the assertion of privilege made by Deputy Howlin Senator Higgins before the tribunal known as the Tribunal of Inquiry into Complaints concerning some gardaí of the Donegal Division hereby authorises the Parliamentary Legal Adviser to instruct on behalf of Dáil Éireann Seanad Éireann counsel to apply for representation at the tribunal and if granted representation to make submissions to the tribunal concerning the powers and privileges of Dáil Éireann and its members I will in due course be expressing my own views as to the formalities required for the exercise of the powers under Article 15 10 but for the present I will continue with the procedural narrative The learned High Court judge held accordingly that the committee was lawfully exercising the power of the Dáil to protect the private papers of its members through a focused exercise of that power in relation to particular private papers of Mr Howlin Kearns J however went on to make the following important observation Apart from his apparent assumption at p 13 of the ruling that the valid exercise of the power contained in Article 15 10 of the Constitution would render the material immune from an order for discovery the respondent did not further consider the nature or extent of the power created by Article 15 10 Instead he proceeded to justify the order for discovery by reference to principles of law covering privilege at common law The gravamen of the respondent s ruling appears to me therefore to be that even if incorrect in determining that the power under Article 15 10 had not been validly exercised he was nonetheless entitled to treat any privilege created by Article 15 10 as a form of qualified privilege to be determined and measured by reference to common law principles If a privilege of the kind contended for in this case may be created by the committee under Article 15 10 and if such privilege would be a form of qualified privilege the parameters of the qualification do not fall for consideration I cannot imagine how any argument could be put forward that those parameters would be in any way different from those applied by the House of Lords and adopted by me as mentioned above on a common law basis The learned High Court judge however went on to consider what undoubtedly would be an important issue if such a privilege could be created namely whether in fact the privilege would be an absolute one In this connection the judge referred first to the Parliamentary Papers Act 1840 which conferred absolute privilege on documents published by order of the House but as he mentions it contained no reference to private papers The learned judge then referred to recent English case law from which it seemed to be recognised that Article 9 of the Bill of Rights 1688 could be given a sufficiently broad interpretation so as to render a question to a minister from a member of parliament contained in a letter and a reply from the Minister by letter to be protected by the same absolute privilege as if there had been an oral question and answer session in parliament itself In the same connection the judgment goes on to refer to Rost v Edwards 1990 2 All E R 641 where it was held by the English Court of Appeal that a letter written by a member of the opposition sent to a member of parliament complaining of his conduct and copy to the Speaker of the House was a proceeding in parliament within the meaning of Article 9 and therefore absolutely privileged for the purposes of defamation proceedings The American law was then considered by the learned High Court judge He referred to the Speech or Debate Clause of the U S Constitution which provided that member of Congress should not be questioned in any other place for any speech or debate in either House It was pointed out that in the case of Brown v Williamson 62 S3d 408 DC Cir 1995 where privileged documents belonging to a tobacco company were stolen from its lawyers offices and sent to two members of Congress who were members of a committee holding hearings relating to the tobacco industry The sub poena was secured for the delivery to the company of the documents directed toward the two members of Congress but the Court of Appeals quashed the sub poena on the basis that enforcement would violate the Speech or Debate Clause The learned trial judge quotes the following passage from the opinion of the U S Court of Appeals We do not accept the proposition that the testimonial immunity of the Speech or Debate Clause only applies when members or their aides are personally questioned Documentary evidence can certainly be as revealing as oral communications even if only indirectly when as here the documents in question do not detail specific Congressional actions But indications as to what Congress is looking at provide clues as to what Congress is doing or might be about to do and this is true whether or not the documents are sought for the purpose of inquiring into of conduct or to advance some other goals The learned High Court judge correctly observed that this development in American jurisprudence post dated the drafting of the 1922 Constitution and in that sense might not be of any relevant assistance in the interpretation of the constitutional provision in Article 15 10 Kearns J goes on then to refer to what he regarded as an intriguing submission and one which has been relied on in written and oral submissions in this court also In his foreword to Kohn s book Constitution of the Irish Free State 1932 the then Chief Justice of the Irish Free State Chief Justice Hugh Kennedy referred to some sources resorted to in the drafting of the 1922 Constitution and that these sources included the Constitution of the Weimar Republic in Germany brought into being in 1919 The former Chief Justice described that Constitution as a political tour de force framed to work in contemporary conditions The significance of this reference is that although Articles 15 12 and 15 13 have their antecedents in the Bill of Rights 1688 and or the Speech or Debate Clause of the U S Constitution no parallel could be found to match the provisions of Article 15 10 which as I have already mentioned are identical in their terms to Article 20 of the 1922 Constitution Clutching at straws to some extent it has been submitted that the real antecedent may be contained in Article 38 of the Weimar Constitution which was set out in the judgment of the High Court and which reads as follows The members of the Reichstag of the Land Diets are entitled to refuse to give evidence concerning persons who have entrusted them with information in their capacity as deputies or to whom they have given information in exercising their official functions as well as concerning these facts themselves In respect of the seizure of documents they have the same status as persons who enjoy a legal right to refuse to give evidence I will return to this submission in due course Counsel for the committee in the High Court Mr Clarke S C submitted in that court that Article 15 10 clearly had the effect of rendering papers of members of either House private and he referred to their exclusion from the ambit of the Freedom of Information Act 1997 Since the learned High Court judge has referred to both of these submissions I must assume that he was to some extent influenced by them I cannot agree that they are of assistance in determining the issues and I will explain why later on in the judgment With no case law to assist in the interpretation of Article 15 10 and no evidence of how Article 20 of the 1922 Constitution came to be drafted in that way it was reasonable that the trial judge should be influenced as he apparently was by the views of Professor Gwynn Morgan in his Constitutional Law of Ireland 1985 at pp 166 167 Professor Gwynn Morgan did seem to consider that private papers of members within the meaning of the Article could be rendered constitutionally privileged as against third parties Decisions of the European Court of Human Rights were then considered by the trial judge These included A v United Kingdom judgment of 17th December 2002 In that case the Court of Human Rights held that the English rule of parliamentary immunity was not a disproportionate restriction on convention rights of access to court The trial judge also referred to a decision of the European Commission on Human Rights in Young v Ireland 17th January 1996 but that case simply upheld the immunity attaching to utterances in parliament On foot of all these submissions the learned trial judge held that in relation to private papers of members the House and therefore the committee by delegation had power to render them privileged without qualification and had done so in this case After explaining why he arrived at that decision he summed it up as follows Accordingly while the wording of Article 20 of the 1922 Constitution may well have been the somewhat imprecise outcome of an attempt to frame an express immunity drawn from the Weimar Constitution but availing of the terminology of U K Parliamentary practice I am satisfied that the intent of the draftsmen was to expressly acknowledge the special status of the private papers of members and how they may be absolutely protected from production outside the House Any strict interpretation must also however lead one to conclude that the privilege is that of the House and not the individual member An order was therefore made in the High Court quashing the Discovery order The Sole Member has appealed the decision of the High Court to this court The notice of appeal contains thirteen grounds For all practical purposes they cover the issues debated in the High Court and referred to by me above A notice to vary has been served on behalf of Mr Howlin It is claimed in this notice to vary that contrary to the findings of the learned High Court judge 1 Mr Howlin is entitled to rely on the protection of Article 15 13 of the Constitution to assert a privilege 2 That Mr Howlin is entitled to assert privilege under Article 15 10 irrespective of any decision in that regard by Dáil Éireann or the Committee on Procedure and Privileges and or is entitled to a privilege pursuant to Articles 15 and 16 of the Constitution by virtue of his status as a member of the National Parliament and or a privilege at common law Having given a procedural history of this case and summaries of what was held at each stage and of what is not at issue before this court I intend now to address the issues of law on this appeal I have already made it clear that I am satisfied that no privilege arises under Article 15 13 As far as alleged constitutional privilege is concerned I am of opinion that it could only arise under Article 15 10 and that is the issue which I am now considering The absence of relevant case law is unfortunate The fact that the wording is wholly different from the provision relied on in the Constitution of the Weimar Republic makes it very dubious and indeed in my opinion speculative that any reliance should be placed on that provision Nor does there appear to be much academic assistance apart from the notable exception of Professor Gwynn Morgan Surprisingly the recent report of the Constitution Review Group did not attempt any analysis of what Article 15 10 meant It would seem probable that the committee decided to leave well alone as no serious problems had arisen from the parliamentary privilege provisions whatever they might mean and that interpretation was better left to the courts Interestingly however Article 15 10 was interpreted by the earlier committee on the Constitution as reflected in their report of December 1967 I find myself impressed by what that report had to say in relation to this provision and I think it worthwhile citing the most relevant passages in full Paragraph 35 sets out the text of Article 15 10 Paragraph 36 then reads as follows The wording of this provision presents some difficulties and it is not easy to determine from it the nature of the powers with which it was intended to endow the Oireachtas It will be observed first of all that it says nothing about the non application of other provisions of the Constitution in relation to the matters at issue In the absence of such an exclusion clause it must be assumed that other provisions of the Constitution such as Articles 34 37 38 and 40 are not brushed aside as they are for example in the case of Article 28 3 3 It they continue to operate with full force then it necessarily follows that the powers of the Houses are not at all as wide as those of some other Parliaments such as the British It will be noted furthermore

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  • Commissioner Fachtna Murphy to investigate this matter our own investigators have also conducted inquiries nothing has been uncovered as a result of the investigations of this Tribunal or on perusal of the documents and statements gathered by the Murphy investigation which provides any support for the allegations contained in the document much less corroboration it does not seem unreasonable to take the view that if this is inquiry is going to be thorough it should attempt to ascertain the source of the information in order to learn from him or her at first hand either what material may be available to support the allegations or with a view to establishing that the allegations are made without a basis of support in fact for whatever reason The Murphy investigation team took a similar view Your investigators Sir also believe it is essential to interview this person to attempt to find out what he or she knows 17 On the 17th December 2002 the Tribunal wrote to Deputy Howlin s solicitors indicating that it was proposed to make an order for discovery against him The terms of the proposed order make it clear that its purpose was the identification of his sources In the course of this letter the findings set out in the opening statement and quoted above were summarised Neither then nor at any later time was issue taken with the proposition that it was essential to interview the source of the allegations if the allegations themselves were to be properly investigated 18 The 10th February 2003 was fixed for a public hearing of the Tribunal at which counsel on behalf of the Oireachtas applied for and were granted limited representation before the Tribunal in relation to the making of the proposed discovery orders Deputy Howlin was also present Both of these parties made written and oral representations as did counsel for the Tribunal Parliamentary background 19 On the 6th July 2001 Dáil Eireann passed the following resolution That whereas Article 15 10 of the Constitution provides that each House of the Oireachtas shall have power to protect its official documents and the private papers of its members Dáil Eireann resolves that the said powers hereby conferred upon the Committee on Procedure and Privileges and may be exercised by that Committee on behalf of Dáil Eireann 20 On the 6th February 2002 four days before the date of the public hearing of objections to the proposed discovery order the Committee on Procedure and Privileges of Dáil Eireann passed a resolution in the following terms That the Committee on Procedure and Privileges of Dáil Eireann Noting Article 15 of the Constitution Noting the privilege enjoyed by members of Dáil Eireann in respect of information received from members of the public Noting the assertion of privilege being made by Deputy Howlin before the Tribunal known as the Tribunal of Inquiry into complaints concerning some gardái of the Donegal Division hereby authorises the Parliamentary Legal Adviser to instruct on behalf of Dáil Eireann counsel to apply for representation at the Tribunal and if granted representation to make submissions to the Tribunal concerning the powers and privileges of Dáil Eireann and its members Determination of the Tribunal 21 On the 28th February 2003 the sole member of the Tribunal delivered his determination on the discovery issue insofar as it affected Deputy Howlin This was a relatively lengthy determination which is unnecessary to set out here it ended in the making of the order which the applicant has sought on judicial review In the course of the determination however the respondent made certain observations about the allegations communicated through Deputy Howlin as follows 3 The allegations made if correct mean that a number of persons have been wrongfully imprisoned because of convictions which were unlawfully obtained by means of planted evidence and perhaps perjury 4 The allegations purport to implicate two Assistant Commissioners and a Detective Sergeant in the commission of serious criminal offences including multiple conspiracies to pervert the course of justice 5 If the allegations are substantiated a number of persons wrongfully convicted may be afforded the opportunity to have miscarriages of justice acknowledged and if still imprisoned would be afforded an opportunity of release 22 The Tribunal also made certain findings of fact relevant to the present issues 3 Insofar as it has been possible to enquire into any of the facts contained in the allegations imparted to Deputy Howlin these inquiries have not established any factual basis for the allegations However these inquiries are not sufficiently exhaustive to satisfy the Tribunal that it is in possession of all relevant information or evidence concerning these allegations It is necessary in order to complete the investigative stage of the Tribunal s work in this regard to discover such information or evidence if any as is in the possession of the informants or those who conveyed information to the informants that could or would substantiate or tend to substantiate the allegations made or not as the case may be 4 Despite comprehensive efforts including a number of false trails it has proved impossible for the Tribunal to trace the identity of Deputy Howlin s informant or informants 5 The work of Tribunal has been gravely hampered by reason of the inability of the Tribunal to establish the identity of the informants and those supplying the informants with the relevant information or evidence 7 I am satisfied that discovery is necessary in order to carry out the work of the Tribunal 23 The Tribunal went on to consider legal issues which are substantially the same as those agitated on the present appeal The Order 24 The Order of the learned respondent is set out in Appendix II The proceedings 25 By order dated the 24th March 2003 the High Court O Neill J gave leave to the applicant to seek to quash the respondent s discovery order The relevant grounds on which this leave was granted have been set out in the judgment of the learned trial judge The judicial review proceedings were heard before the learned trial judge who delivered a written judgment on the 13th October 2003 It is to be noted that the judgment proceeded on the basis that the records of which discovery were sought were indeed private papers within the meaning of Article 15 10 of the Constitution The learned respondent had held that the papers were in this category but in written submissions to the High Court counsel for the Tribunal had sought to challenge this proposition The learned trial judge did not permit this change of front and I am satisfied that he was correct in this ruling This judgment therefore proceeds on the basis that the relevant documents are indeed private papers within the meaning of Article 15 10 though necessarily without so holding I also agree with the learned trial judge s finding that the respondent s determination that no utterances were made in Dáil Eireann in respect of which it is now sought to make the applicant amenable to the Tribunal is not now in issue for the reasons given by the learned trial judge The first issue 26 On the hearing of this appeal a significant difference arose in the submissions on behalf of Deputy Howlin on the one hand and those advanced on behalf of the Committee on Procedure and Privileges on the other This is as to whether the privilege or immunity conferred by Article 15 10 of the Constitution or by the exercise of powers granted there is the privilege or immunity of an individual deputy or of Dáil Eireann itself Deputy Howlin contended for the former proposition and the Committee for the latter The learned trial judge had held that the privilege is that of the House and not of the individual member The respondent had proceeded on the same basis 27 I propose to resolve this issue first as its resolution will affect other issues 28 Article 15 10 of the Constitution provides as follows Each House shall make its own rules and standing orders with power to attach penalties for their infringement and shall have power to ensure freedom of debate to protect its official documents and the private papers of its members and to protect itself and its members against any person or persons interfering with molesting or attempting to corrupt its members in the exercise of their duties 29 The following two sub Articles of Article 15 also appear to be relevant to the present issue 12 All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged 13 The members of each House of the Oireachtas shall excepting case of treason as defined in this Constitution felony or breach of the peace be privileged from arrest in going to and returning from and while within the precincts of either House and shall not in respect of any utterance in either House be amenable to any court or any authority other than the House itself Approach to construction 30 The construction of Article 15 10 is not an easy or a straightforward task The Article as a whole is entitled The National Parliament Constitution and Powers Article 15 7 to 15 11 correspond closely with indeed substantially reproduce corresponding provisions of the 1922 Constitution Article 20 of which is virtually identical with the sub Article now under discussion In Maguire v Ardagh 2002 IR 385 at 536 7 Keane C J set out the texts of Article 15 10 Article 15 12 and Article 15 13 and observed These extensive immunities and privileges denied to citizens who are not members of the Houses of the Oireachtas are an important feature of the parliamentary democracy established under the Constitution Neither these provisions however or any other provision of the Constitution expressly exempt from scrutiny by the Courts the actions of the Oireachtas or its individual members save to the extent specified in Articles 15 12 and 13 31 The Report of the Committee on the Constitution commented on sub Article 10 as a whole The wording of this provision presents some difficulties and it is not easy to determine from it the nature of the powers with which it was intended to endow the Oireachtas In argument in the present case counsel for the applicant contended for the proposition that the sub Article gave concrete expression to what s inherent or implicit in our system of government It provided this protection for the individual deputy He does not need to invoke the protection of the House But counsel candidly acknowledged that there is an ambiguity in Article 15 10 as to whether the privilege or immunity there conferred is personal to the individual member or is one which only the House can assert 32 Counsel for the Committee who in this respect only was at variance with the applicant s view conceded that the words of Article 15 10 may not be of absolute clarity on the same point 33 Finally there is no judicial authority on this topic apart of course from the judgment of the High Court under appeal The learned trial judge adopting what he described as strict interpretation of Article 15 10 concluded that the privilege is that of the House and not of the individual member 34 There is however important authority relating to the privilege conferred by Article 15 12 and 15 13 In Attorney General v Hamilton No 2 1993 3 IR 227 which arose out of certain developments before the Beef Tribunal the Courts were concerned with whether a deputy was privileged from identifying the source of information which is repeated by the deputy in Dáil Eireann A specific question arose as to whether the protection contained in Articles 15 12 and 15 13 extended to material contained in written statements to a Tribunal of Inquiry which were by way of elaboration of utterances in the House One of the submissions made on behalf of the Deputies who were notice parties in that case was for an extended interpretation of Article 15 13 so as to include statements made to the Tribunal Addressing this Finlay C J said With regard to the claim made for an extended interpretation of Article 15 13 so as to include statements made to this Tribunal having regard to its origin derived in part from the resolutions of the Houses of the Oireachtas I am satisfied that it is not a submission which can be accepted The provisions of Article 15 12 and Article 15 13 of the Constitution are explicit and definite in their terms though the application of them may be a matter of complexity in certain instances They constitute a very far reaching privilege indeed to members of the Houses of the Oireachtas with regard to utterances made by them in those Houses They represent an absolute privilege and one which it is clear may in many instances represent a major invasion of personal rights of the individual particularly with regard to his or her good name and property rights In addition this immunity and this privilege constitutes a significant restriction on the important public right associated with the administration of justice of the maximum availability of all relevant evidence a right which has been particularly emphasised in the decisions of this Court 35 For these reasons Finlay C J approached the other issues in the case having regard to the analysis I have made of the provisions of the Constitution applicable and taking the narrower or less liberal interpretation of them which I feel obliged to take 36 For analogous reasons principally the interference which the immunity represents to the rights of individual third parties and to the public right to have very grave allegations about members of the Garda Síochána the police force of the State properly and transparently investigated I believe that it is right to adopt a strict construction of the immunity contained in Article 15 10 The subject matter of this sub Article and of sub Articles 12 and 13 are sufficiently similar to make the analogy a useful one They are not however at all identical as will appear below and an analysis of sub Articles 12 and 13 is by no means interchangeable with that offered below of sub Article 10 But there is the essential common feature of a privilege or immunity extending only to parliamentarians and which may impact on the rights of other citizens or those of the public generally 37 Insofar as this analysis is based at least in part on the rights of third parties it is relevant to consider the applicant s submission that in the circumstances of the present case there are no third parties involved 38 I cannot agree with this proposition Subparagraph h of the Dáil Resolution and of the Terms of Reference explicitly requires inquiry into material which consists of allegations by one anonymous third party against three named third parties I use the term third party to mean persons outside the Oireachtas and unconnected with the Tribunal It is manifest that these allegations touch on the good name and indeed the livelihood of such parties 39 The case of Melton Enterprises Limited v Censorship of Publications Board Ors Supreme Court unreported 4th November 2003 was relied upon to support the contrary proposition But the facts of that case gave rise to quite different legal considerations There the Censorship of Publications Board had to determine whether in the subjective determination of the individual members of the Board a particular publication was indecent or obscene In that situation it was held that the identity of the person who had drawn the publication to the Board s attention was irrelevant to the discharge of the function and need not be disclosed The judgment of Keane C J however at pages 3 4 discussed in some detail the circumstances in which such information would be relevant Keane C J continued There is however one feature present in all those decisions which is conspicuously absent from the present case In each instance the relevant tribunal was involved in the ascertainment of objective facts on the basis of which it would then arrive at its adjudication or in the case of Re Haughey submit its conclusions to the Oireachtas in the form of a report In total contrast the Board in this case is not engaged in an inquiry which if properly conducted would result in impartial and objective findings of fact It is concerned with the wholly subjective process of the determining whether in the opinion of at least three of its members the recently published issues of the Weekend Sport have usually or frequently been indecent or obscene 40 The facts here are very different Very grave allegations have been made and no evidence has been found to support them An inquiry into these allegations which did not seek the evidence of the person who made them may have would be in clear dereliction of its duty Indeed if the Tribunal cannot ascertain the identity of that person and approach him it is hard to know how they can conduct the portion of their inquiry referred to at sub paragraph h of the resolution passed by both Houses at all 41 I therefore believe it appropriate to adopt what the learned trial judge called a strict and what Finlay C J called a narrower and less liberal approach to the construction of Article 15 10 in the circumstances of this case I am not unaware of the dicta of this Court favouring in certain circumstances a broader or purposive approach to construction in certain circumstances I find myself in agreement with what is said at page 4 of the introduction to Kelly The Irish Constitution 4th Edition The literal approach is perhaps most appropriate in relation to the more technical provisions of the Constitution as distinct from those provisions relating to fundamental rights and public policy Meaning of Article 15 10 42 The learned trial judge construed the portion of sub Article 10 after the first phrase as an enabling power whereby the House may render the private papers of members immune from discovery and production elsewhere by declaring them to be so Emphasis added The existence of this power may indeed be based on an acknowledgement of the proposition that the private papers of a parliamentarian are inherently deserving of protection or attract a protection deriving from the nature of parliament itself or from the imperative to ensure free debate in parliament But whether this is so or not has nothing to say to the precise nature of the protection which is that conferred by Article 15 10 and not one arising from any other source or by analogy with the practice of other Parliamentary bodies 43 The enabling power arising from Article 15 10 is different in kind from the privileges or immunities contained in Article 15 12 or 13 These sub Articles respectively themselves confer privilege on utterances in either House a privilege from arrest and an immunity from amenability to any authority other than the House itself in respect of any utterance in either House They are clearly fully effective in and of themselves or self executing to use a phrase which featured in argument Moreover the privileges and immunity which they confer are conferred on the members and attach to each of them individually This is clear from the plain and unambiguous words of the sub Article themselves 44 By contrast the power declared or conferred by sub Article 10 is clearly and in terms that of the House and not of the individual member Indeed it appears from the terms of the Resolution of 6th July 2001 that this is the view of Dáil Eireann itself It is certainly the ordinary and natural meaning of the words of the sub Article 45 In contending for the contrary view counsel for the applicant was constrained to argue that a deputy could by his own act confer immunity on himself from an otherwise lawful demand for his private papers and could even do so against the unanimous consensus of his colleagues This appears to me to sit ill with the sub Article the whole of which is concerned with the obligations in relation to standing orders and powers of the House 46 The applicant also adopted the view of Professor Gwynn Morgan expressed in his Constitutional Law of Ireland 1985 that each House has the power to protect its official documents and the private papers of its members this would probably enable the Oireachtas to resist the normal police powers of search or a court order in respect of documents and papers 47 It will be noted however that Professor Gwynn Morgan attributed this ability to the Oireachtas and not to the individual member 48 More significant however for present purposes is that in order to avoid the repellent prospect of a member being able to conceal evidence of his own malfeasance by his own individual and it is said unreviewable act of invoking privilege it was contended and held in the High Court that the protection envisaged in Article 15 10 for private papers did not extend to papers which evidenced a Deputy s malfeasance Counsel said Malfeasance by a deputy is not embraced by Article 15 10 This point was made with considerable emphasis at the very start of the substantive submissions The Article itself of course does not expressly provide for a malfeasance exception at all it was posited by the applicant in order to avoid a more difficult proposition If the exception exists it can only be accounted for as an application of an ex turpe rule grounded on public policy The existence of a malfeasance exception however was not disputed by any party to these proceedings 49 But to posit an exception on that basis makes it very difficult to maintain that the privilege is that of the Deputy himself capable of being exercised so as to immunise himself from a lawful search warrant or other process even against the unanimous consensus of his colleagues Once there is conceded to be an exception grounded on malfeasance to the otherwise general terms of the absolute privilege for which the applicant contends it becomes necessary to address the question as to who is to decide whether the malfeasance exception applies and on what basis Is a mere allegation or a reasonable suspicion or the demonstrated fact of malfeasance required to displace the privilege But still more fundamentally it appears absolutely essential that the decision as to whether the privilege has been displaced be taken by someone other than the Deputy himself for he or she is the person in relation to whom malfeasance is alleged or suspected or proved And this of course is much more consistent with the power to invoke a privilege or immunity being that of the House or by delegation the Committee than with the Deputy having the power to immunise himself 50 The applicant s answer to this difficulty was to nominate a Court as the body which would decide on the applicability or scope of the immunity in the context of malfeasance This submission seemed to me a surprising one since Article 15 of the Constitution is entitled The National Parliament Constitution and Powers 51 The text of the Article nowhere envisages that a person or body outside the Oireachtas will exercise the powers conferred on that body There is no precedent of which I am aware in which a court has actually exercised a power which the Constitution has conferred on the Oireachtas or either House thereof Indeed this Court has several times declined to interfere in the internal machinery of debate of the House because this is within the competence of Dáil Eireann to deal with exclusively having regard to Article 15 10 of the Constitution See O Malley v Ceann Comhairle 1997 1 IR 427 per O Flaherty J On the small numbers of occasions when the Courts have been prepared to supervise the orders or procedures of an Oireachtas body it has been at the suit of non members whose rights were affected see Re Haughey 1971 IR 219 and Maguire v Ardagh 2002 1 IR 385 This is a vital distinction as Keane C J said in the latter case at page 538 Different considerations apply however where as here the Oireachtas purports to establish a committee empowered to enquire and make findings on matters which may unarguably affect the good name and reputations of citizens who are not members of either House An examination by the Courts of the manner in which such an inquiry is established in no way trespasses on the exclusive role of the Oireachtas in legislation Nor does it in anyway qualify or dilute the exclusive role of the Oireachtas in regulating its own affairs 52 Moreover such intervention has always been by way of review of a decision already made in no case has a court assumed to itself the power to make a decision where that function is conferred on the Oireachtas 53 It therefore seems to me that a decision on whether to grant immunity from otherwise lawful disclosure in respect of what are claimed to be the private papers of a member or to refrain from doing so is that of Dáil Eireann itself or its lawful delegate If such decision does not affect the rights of anyone who is not a member of Dáil Eireann that decision appears to be final and unreviewable Furthermore the decision is one for the exercise of the discretion of the House The view of the individual deputy involved does not bind the House Furthermore there is no warrant in the terms of Article 15 for withholding disclosure only on the basis of misfeasance actual or suspected by a deputy The decision of the House or its delegate must be on the basis of a much broader discretion where all relevant matters including the purpose for which the demand for disclosure is made the identity of the body or person seeking disclosure the importance of the matter in connection with which disclosure is sought and the public interest generally are considered 54 It thus appears to me that both a literal construction of Article 15 10 or a purposive construction which accommodates the exclusion from the privilege of documents evidencing malfeasance alike lead to the conclusion that the power to protect the private papers of members resides in the House or its delegate and not in the individual deputy 55 This is a significant conclusion for the balance of the issues raised on the appeal If the power to protect the Deputy s papers which are telephone records from discovery and production pursuant to the respondent s order is that of the Committee the next question that arises is whether or not the Committee has duly exercised that power in the present case The actions of the Committee 56 On the 6th February 2002 the Committee passed the resolution which is set out earlier in this judgment On foot of this the Parliamentary Legal Adviser instructed counsel who subsequently placed oral and written submissions before the respondent There is no evidence that the Committee took any other step or arrived at any other decision in relation to the papers discovery of which was sought 57 In my view it follows from the finding already made that the effect of Article 15 10 was to empower the Committee to protect the papers sought that the protection must be brought into being or triggered to use a word deployed in the submissions by some express act on the part of the Committee When a legal or constitutional function or capacity is conferred on a person or entity by empowering or permissive words it seems to me to follow that the power in question may or may not be exercised the donee of the power may choose whether to exercise it or not That was the view both of the respondent and of the Committee Mr Howlin consistent with his fundamental submission that the power was his and no one else s took the view that no action whatever on the Committee s part was necessary and that in passing the resolution they had acted unnecessarily 58 Alternatively he said that if contrary to this basic submission some action on the part of the Committee was required then the power can be invoked in any way at all there is no requirement that it be exercised only by motion or resolution In this analysis the resolution actually passed was mere happenstance according to Deputy Howlin s written submissions As it happens the Committee passed a motion on the 6th February 2003 Emphasis added 59 Accordingly it was submitted on behalf of Deputy Howlin in this alternative argument any act whatever or any series of acts which could be connected for the purpose are capable of constituting an exercise by the Committee of the power conferred by Article 15 10 In particular it was submitted that some combination of any or all of the following matters might constitute such exercise the resolution the actual appearance of counsel before the respondent and either or both of these things combined with the submissions actually made by counsel 60 In support of this submission Mr Hogan S C for Deputy Howlin sought an analogy by looking to what would happen if a group of trespassers invaded the Dáil Chamber and frustrated the freedom of debate He invited the Court then to suppose that the trespassers were ejected by the staff of the Oireachtas by force leading to an action against the staff for assault and false imprisonment Could it possibly be said that the members of staff in question could not rely on Article 15 10 even if no formal motion or resolution had been passed directing them to take such action 61 I regret that I cannot see any analogy whatever between what is at issue here and the facts hypothesised There can be no doubt that Dáil Eireann its servants and agents enjoys the right of every proprietor and tenant to expel trespassers from their premises It seems to me both over elaborate and quite unnecessary to seek a constitutional source for that power which does not require any root in the Constitution at all Still more fundamentally the present case concerns a power to protect private papers If the danger from which the papers required to be protected was that of theft by main force again no constitutional root would be required for the obvious and immemorial power to protect one s own property Neither of these situations in my view have the smallest analogy with the serious matter at issue here whether to what extent and how Dáil Eireann may protect its members private papers from a lawful demand for production by a Tribunal of Inquiry which is itself the instrument chosen by the Oireachtas to enquire into matters of urgent and fundamental public importance The Tribunal has of course proceeded openly and in accordance with law in a manner which make analogies with the deployment of unlawful force quite inapposite 62 It seems to me to be clear from the wording of Article 15 10 itself that the protection against a prima facie lawful demand for production must be by positive and specific decision of the Committee To adapt the words of the learned trial judge the House may render the private papers of members immune from discovery in production elsewhere by declaring them to be so 63 Such a declaration must also be explicit and specific as to the papers to which the protection is extended I would entirely reject any submission that the conferring of a privilege or immunity from a disclosure which is lawfully demanded can be inferred or deduced from other actions To put this another way I believe that the conferring of protection and the extent of that protection by the Committee must be clear to demonstration from a perusal of the official record of the Committee s actions This is so I believe for precisely the same reasons which led to the conclusion that the privileges conferred by Article 15 12 and 13 must be strictly construed This is a power to protect private papers from the otherwise lawful scrutiny of a Tribunal of Inquiry in whose establishment Dáil Eireann itself and Deputy Howlin himself participated Moreover it is proposed to withhold these papers in circumstances where their disclosure may be important to individuals attempting to vindicate their good name I am not saying that the Committee cannot protect these papers despite the manifestly strong and legitimate demand for their disclosure I am saying that if it does so it must be perfectly clear that it has invoked the power to protect against a specific demand for disclosure whose significance it has considered and it must be equally clear to what specific papers the protection applies The Resolution 64 Turning to consider the resolution in light of the analysis above I cannot regard it as a proper or valid exercise of the Article 15 10 power This important constitutional power to invoke a protection which is not available to any citizen other than a member of the Oireachtas cannot in my view be exercised except in absolutely express terms I agree with what the respondent said in his ruling on this aspect In my view the exercise of such a power by the Committee on Procedure and Privileges requires the passage of a motion by the Committee to that express intent 65 This seems quite consistent with what was said by Geoghegan J in Maguire v Ardagh 2002 1 IR 419 at 736 While it is true that out of respect for the separation of powers the Courts will not interfere with the internal operations of the orders and rules of the Houses in respect of their own members the non justiciability principle stops there If there is some essential procedural step which a House of the Oireachtas or a committee thereof has to take before the rights of an outsider that is to say a non member of the House can be affected then at the suit of that outsider the Courts can give relief if that essential step is not taken 66 It seems to me that the motion is entirely neutral in its terms Various matters are noted in a wholly neutral fashion neutral indeed to the point of being meaningless The phrase noting Article 15 of the Constitution means nothing at all There is no reference to the demand for production its source its importance or the importance of any countervailing considerations which the Committee may or may not consider to exist The effective part of the order simply authorises the Parliamentary Legal Adviser to instruct counsel to apply for representation and make submissions concerning the powers and privileges of Dáil Eireann and its members This form of words simply does not address the fundamental question is the Committee or is it not conferring protection on Deputy Howlin s private papers which will allow him to resist a lawful demand for their production notwithstanding their manifest importance to the Tribunal s work 67 If this important constitutional power is to be exercised it must be exercised by the body on whom it is conferred Dáil Eireann or its undisputedly lawful delegate the Committee It cannot be derived from the actions of one or other of these Bodies plus those of counsel instructed with to judge by the motion a wholly neutral remit 68 It will be recalled that the learned trial judge found that the sub Article contained a power to confer immunity

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  • Each such individual s seniority and service held within Aer Lingus will continue and accumulate in the new Company 4 Promotion within the new Company will not affect the guaranteed Aer Lingus status of each such individual working within the new Company 5 The agreement will provide that the guarantees given will become part of the individual s contract of employment and will be enforceable by each such individual employee 6 No change in the terms of the agreement can take place without the individual consent of each employee affected If the ballot is in favour of the proposed agreement the above Heads of Agreement will be formally drafted in a contract to be signed by Aer Lingus and by the Unions as agents of individual employees Part B then contains a number of matters in which it is stated that the company have agreed in addition one of which is The Company agrees that it will continue to retain fifty per cent interest in the new Company History of Team The final ballot was held following receipt of this document in which the proposals were accepted by a majority In due course the maintenance and engineering staff were seconded to Team and in the short term in fact enjoyed better conditions than the Respondent s other employees in that they got an increment and a national wage increase in 1981 which was not given to the Respondent s employees However this was short lived and in 1993 the aircraft maintenance business ran into difficulties resulting in a lock out of Team workers for a number of weeks The present proceedings were commenced in 1994 claiming that the lock out constituted a breach of contract but as matters progressed the claims were expanded to include the present disputes Between 1994 and 1996 the persons seconded to Team did not receive either national wage agreement pay increases nor any incremental increase both of which were received by the remaining employees of the Respondent and the wages of Team employees fell below those of the remaining employees of the Respondent In 1996 and 1997 Team began to prosper again and the Respondent decided to seek a purchaser for Team In 1998 FLS Aerospace agreed to purchase Team and negotiations then commenced with the workforce as to the conditions under which they would be willing to remain with Team under the new management As a result of these negotiations very attractive terms were offered by the Respondent subject to the individual employees who remained on with Team agreeing to waive all rights they might have against the Respondent on foot of the earlier guarantees and representations In the event some ninety seven per cent of employees remained on and three per cent including the Appellants herein opted to return to the Respondent At this stage the Respondent only had a very small maintenance and engineering division largely looking after its commuter aircraft About eighty persons transferred back but there were only some forty technical jobs available The remaining forty employees including many of the Appellants were redeployed in other jobs in the Respondent some of which would normally pay a considerably lower salary than that paid to maintenance and engineering workers These Proceedings The statement of claim was amended on several occasions and ultimately sought a number of declarations in relation to the rights of the Appellants and damages The matter was heard in various stages by the High Court Kearns J and I will refer to the judgments in more detail but ultimately by order dated the 4th day of June 2003 the Court declared that 1 The plaintiffs were at all material times and continue to be in the employment of Aer Lingus 2 The plaintiffs are entitled as employees of Aer Lingus upon the end of their secondment to TEAM Aer Lingus to be treated as though TEAM had never existed and were to be paid the same levels of remuneration as mechanical engineers employed by Aer Lingus who had not been seconded to have their seniority fully recognised and to be placed on the appropriate incremental scale as though they had never left Aer Lingus such entitlement to be limited to a period of four years following the end of their secondment with TEAM Aer Lingus The Court also awarded damages based on these declarations Although the Appellants substantially succeeded in these proceedings they have appealed in relation to the limitation of their entitlement to a period of four years from the end of their secondment to Team The Respondent did file a notice to vary but it is no longer pursuing it and therefore is accepting the findings of the learned trial Judge For this reason most of the issues dealt with by the learned trial Judge are no longer in dispute but it is useful to summarise very briefly the findings of his several judgments Judgments of the Learned Trial Judge The first judgment delivered on 15th April 2002 dealt with the issue of whether the Appellants were entitled to parity of pay during the period of their secondment to Team The learned trial Judge held there was no such entitlement and this is not an issue before this Court However the learned trial Judge ended his judgment on that issue by saying It seems appropriate having regard to the defined agenda which the Court undertook to defer to a later date any submissions the parties may wish to make particularly with regard to the work circumstances in which the present plaintiffs find themselves following their return from secondment In other words are they entitled to maintenance work which accords with their qualifications and experience or if such work is not available are they entitled to compensation or damages in lieu thereof In this regard I am thinking in particular of the assurance given to transferring craft workers by Mr O Neill s letter of 13th April 1990 in which he said In the unlikely event of

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  • Article 17 7 which provides Where in exceptional circumstances a Member State cannot observe the time limits provided for in this Article it shall inform Eurojust giving the reasons for the delay In addition a Member State which has experienced repeated delays on the part of another Member State in the execution of European arrest warrants shall inform the Council with a view to evaluating the implementation of this Framework Decision at Member State level It is noteworthy that this article refers to exceptional circumstances where a Member State cannot observe the time limits while it is urged that the time limits be met The requirement that the Member State should inform Eurojust is clearly a mechanism to encourage compliance with the aspired time limits Also the terms of the mandatory requirement of notice to Eurojust anticipates a method of evaluation of the implementation of the Council Framework Decision Article 23 relates to time limits for the surrender of the person Article 23 1 provides that a person shall be surrendered as soon as possible on a date agreed between the authorities Article 23 2 states that he she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant However pursuant to Article 23 3 if the surrender of the requested person within the 10 days is prevented by circumstances beyond the control of the Member State the executing and issuing judicial authorities shall contact each other immediately and agree a new surrender date the surrender shall take place within 10 days of the new agreed date Article 23 4 relates to an exceptional situation and provides that surrender may exceptionally be temporarily postponed for serious humanitarian reasons e g if there are substantial grounds for believing that it would manifestly endanger the requested person s life or health The European arrest warrant shall be executed as soon as these grounds have ceased to exist These sections give a degree of leeway to the authorities in certain circumstances Article 23 5 provides however that upon expiry of the time limits referred to in paragraphs 23 2 and 23 4 if the person is still in custody he shall be released Article 23 relates to the surrender after the final decision on the execution of the warrant Such a decision is made by the Judicial Authority in Ireland the High Court or on appeal by the Supreme Court As the final decision on the applicant s appeal has not been made in this case this article does not apply to the applicant at this stage of the proceedings 4 1 National Forms and Methods Council Framework Decisions are not part of the domestic law The exercise taken previously in construing the Council Framework Decision is firstly to further understanding of the document Secondly it is a relevant factor in the interpretation of the national law Council Framework Decisions are binding on the State as to the result to be achieved and it is left to the national authorities to choose the form and method of implementation Member States have implemented this Council Framework Decision However the forms and methods used have not been identical This may be seen from a few examples 4 2 Belgium Belgian legislation has prescribed very precise time limits expressed in days and hours An unofficial translation of that legislation provides as follows Article 16 1 Within 15 days of the arrest the Council Chamber shall rule by a reasoned decision on the execution of the European arrest warrant on a report of the investigating judge and having heard the King s prosecutor and the person concerned assisted or represented by his lawyer 5 If the Council Chamber does not rule within the period stipulated in paragraph 1 the investigating judge orders the release of the person unless the public prosecution service appeals this order within 24 hours before the Court s indictment division in keeping with Article 17 Article 17 1 The person concerned and the public prosecution service can appeal the decision of the Council Chamber before the Court s indictment division The appeal must be made within 24 hours beginning from the day of the decision for the public prosecution service and for the person concerned on the day on which it is served to him 2 The appeal is made by a declaration to the clerk of the Court of First Instance and is recorded in a register opened for that purpose 4 Within 15 days of the declaration referred to under 2 the Court s indictment division rules on the appeal by a reasoned decision having heard the King s prosecutor and the person concerned assisted or represented by his lawyer The division shall make the verification stipulated in Article 16 1 2 in order to make that ruling If no decision is made within that period the person concerned is released 5 The decision on the appeal is communicated to the general prosecutor immediately and is served to the person concerned within 48 hours The act served contains the notification to the person concerned of his right to appeal in cassation and the period during which this right must be exercised Article 18 1 The decision on the appeal can be appealed in cassation by the public prosecution service and by the person concerned within a period of 24 hours beginning from the day of the decision for the public prosecution service and for the person concerned on the day on which it is served to him 2 The dossier is transmitted to the clerk of the Cour de Cassation within 24 hours as from the time of the appeal The arguments in cassation can be described wither in the act of the appeal or in a written document lodged at that time or in a memorandum that must reach the registry of the Cour de Cassation on the fifth day after the appeal in cassation at the latest 3 The Cour de Cassation rules within 15 days as from the date of appeal in cassation 4 After a ruling in cassation with referral the Court s indictment division to which the case is referred rules within 15 days as from pronouncement of the Cour de Cassation s ruling 5 If the appeal in cassation is rejected the decision of the Court s indictment division on the execution of the European arrest warrant is immediately enforceable It appears that in a Belgian case Cour de Cassation French Section 2nd Chamber 28 December 2004 No P 04 1665 F a defence has been argued that Article 16 1 of the Belgian law implementing the European arrest warrant which requires the Chambre du Conseil to decide on the execution of the European arrest warrant within 15 days after the arrest had been violated and that the procedure is thus unlawful It appears that the non respect of the time limit provided for by Article 16 1 of the Belgian law of 19 December 2003 implementing the European arrest warrant resulted in the requested person s release but did not make the execution procedure unlawful 4 3 Netherlands Legislation in the Netherlands provides for time limits as follows Article 22 3 3 Exceptionally provided reasons are given to the issuing judicial authority the court may extend the term of sixty days by a maximum of thirty days 4 If the court has still given no verdict within the period as per paragraph 3 the court may again extend the term indefinitely while setting conditions for simultaneous suspension of the detention of the requested person and notification of the issuing authority Thus while the time limits urged in the Council Framework Decision are followed with the addition that the court is given a discretion to extend the time 4 4 United Kingdom The United Kingdom in the Extradition Act 2003 c 41 makes provision for time limits It also reflects the time limits in the Council Framework Decision with the addition of power to the judge to extend time in the interests of justice Section 75 states 1 When a person arrested under a warrant issued under section 71 first appears or is brought before the appropriate judge the judge must fix a date on which the extradition hearing is to begin 2 The date fixed under subsection 1 must not be later than the end of the permitted period which is 2 months starting with the date on which the person first appears or is brought before the judge 3 If before the date fixed under subsection 1 or this subsection a party to the proceedings applies to the judge for a later date to be fixed and the judge believes it to be in the interests of justice to do so he may fix a later date and this subsection may apply more than once 4 If the extradition hearing does not begin on or before the date fixed under this section and the person applies to the judge to be discharged the judge must order his discharge Thus while the time limits recommended in the Council Framework Decision are aspired to the Court is given jurisdiction to extend the time limits in the interests of justice The complexities of a single European arrest warrant scheme in the Member States albeit that they are purporting to implement the Council Framework Decision are manifestly obvious Each Member State has taken steps to implement the European arrest warrant but in different ways The Constitutions of Member States are relevant and determinative in some instances on issues relevant to the European arrest warrant 5 Ireland In Ireland the Act of 2003 was enacted to implement the obligations arising from the State s agreement to the Council Framework Decision It is specifically stated in the long title that it is an Act to give effect to the Council Framework Decision and surrender procedures between Member States to amend the Extradition Act 1965 and certain other enactments and to provide for connected matters The Act of 2003 came into operation on the 1st January 2004 Part 2 provides for the European arrest warrant Specific references to the Council Framework Decision are made Thus pursuant to s 9 for the purposes of a Framework Decision the High Court shall be the executing judicial authority in the State Section 10 provides inter alia that where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person that person shall subject to and in accordance with the provisions of the Act of 2003 and the Council Framework Decision be arrested and surrendered to the issuing state A European arrest warrant shall as far as is practicable be in the form set out in the Annex to the Framework Decision and s 11 1 sets out what shall be specified Section 12 relates the transmission arrangements Section 14 makes provision for arrest without a warrant on the grounds of urgency and is not relevant to this case Section 15 makes provision for the situation when a person consents to a surrender and is not relevant to this case Section 16 of the Act of 2003 provides that where a person has not consented to his surrender as in this case the High Court may on such date as is fixed under s 13 make an order that such person be surrendered to such other person as is duly authorised by the issuing State to receive him her provided that inter alia a The High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued b The European arrest warrant or a facsimile or true copy has been endorsed in accordance with s 13 for execution of the warrant c Such undertakings as are required are provided to the court d The surrender of the person is not prohibited by Part 3 or the Framework Decision including the recitals thereto Section 13 provides for the bringing of a person before the High Court and the fixing of a date The High Court may remand the person in custody or on bail and under s 13 5 b fix a date for the purpose of Section 16 being a date that falls not later than 21 days after the date of the person s arrest Section 16 provides for the making of a surrender order 16 1 Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15 9 the High Court may upon such date as is fixed under section 13 make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her provided that a the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued b the European arrest warrant or a facsimile or true copy thereof has been endorsed in accordance with section 13 for execution of the warrant c such undertakings as are required under this Act or facsimile or true copies thereof are provided to the court d the surrender of the person is not prohibited by section 22 23 or 24 and e the surrender of the person is not prohibited by Part 3 or the Framework Decision including the recitals thereto This is the order for surrender but it does not take effect for a further 15 days s 16 3 and 4 A person shall be surrendered not later than 10 days after this time subject to his right to make a complaint under subsection 6 or on humanitarian grounds under s 18 Section 16 5 and section 16 6 See subsection 5 and 6 However once the time limit of 10 days has passed and none of the exceptions apply the person who is not surrendered shall be released These subsections relating to time limits after the final order provide for mandatory release but they do not apply in this case as no final order has been made The Act of 2003 does not establish mandatory time limits prior to the final order for surrender in the same way as it does to the period after the final order Sections 16 10 and 11 state 10 If the High Court has not after the expiration of 60 days from the arrest of the person concerned under section 13 or 14 made an order under this section or section 15 or has decided not to make an order under this section it shall direct the Central Authority in the State to inform the issuing judicial authority and where appropriate Eurojust in relation thereto and of the reasons therefore specified in the direction and the Central Authority in the State shall comply with such direction 11 If the High Court has not after the expiration of 90 days from the arrest of the person concerned under section 13 or 14 made an order under this section or section 15 or has decided not to make an order under this section it shall direct the Central Authority in the State to inform the issuing judicial authority and where appropriate Eurojust in relation thereto and of the reason therefore specified in the direction and the Central Authority in the State shall comply with such direction Thus the Act of 2003 makes it mandatory that after 60 days from the arrest the High Court shall direct the Central Authority to inform the issuing judicial authority and where appropriate Eurojust and that the Central Authority shall comply This is a mandatory requirement of notice There is no provision for release The section does not give to an individual person the right to be released 6 Relationship between Council Framework Decisions and the National Law The relationship between Council Framework Decisions and the national law was considered in Pupino C 105 03 in a judgment of the Court Grand Chamber of 16 June 2005 This decision related to a different Framework Decision but the principle is the same The court held at paragraph 43 43 In light of all the above considerations the Court concludes that the principle of interpretation in conformity with Community law is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union When applying national law the national court that is called upon to interpret it must do so as far as possible in the light of the wording of the purpose of the framework decision in order to attain the result which it pursues and thus comply with Article 34 2 b EU It was remarked however 44 It should be noted however that the obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law is limited by general principles of law particularly those of legal certainty and non retroactively It was further pointed out in paragraph 47 47 The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that envisaged by that framework decision In other words the principle of interpretation in conformity with Community law cannot serve as the basis for an interpretation of national law contra legem That principle does however require that where necessary the national court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision Thus the national court when applying the national law should do so as far as possible in light of the Council

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