Ireland's Relationship with the rule of Law and Direct Provision

Published on 20 June 2020 at 08:24

Ireland has always been highly regarded for its legal system in equity. Although revered for its strong foothold in the democratic spirit with an active independent judiciary and emphasis on the right of the person in its constitution, many have come to view the direct provision centres as a stain on that achievement. Amnesty International has called it into question over concerns of human rights and dignity.

Despite this, there is hope for the future of asylum seekers in Ireland and the conditions they reside it. Following an Oireachtas report initiated by Chairman of the Justice and Equality Committee, Sinn Féin TD Caoimhghin Ó Caolain, the new historic coalition between Fine Gael, Fianna Fáil and the Greens Party, the “root and branch reform or total replacement” may well be on the horizon.

A look back to the court’s decision regarding issues dealing with direct provision further indicates the direction Ireland is now heading in to preserve the integrity in justice it has garnered in contemporary times. One decision to focus on is that of the Supreme Court in N.H.V v Minister for Justice and subsequent legislative and executive responses.  It signifies the Irish legal system’s compliance with the rule of law and does so in a way that satisfies several noted (and often contradictory) interpretations of it.

Interpretations of the rule of law adhere to principles of fundamental rights and democracy. Yet these understandings must be consistent and certain. Paul Gallagher cites various articles of the Constitution that enshrine and encapsulate this concept, whilst rejecting relativism. Denham J, however, notes that challenges to the rule of law are necessary to uphold those principles. This would concur, to some degree, with Professor Davis’s view of it, that the human element of progressivism is necessary for its operation. Judith Shklar outlines in her political essay. Aristotle’s position on it as fallacious, as the rationale was only applied to a limited portion of society at the time. Yet ideas of ‘Aristotelian equality’ remain prevalent in who can be discriminated against under certain circumstances. She contrasts it with Montesquieu’s more contemporary view that it protects the ruled from the ruling.

The approved definition in Ireland is that of Hogan and Morgan, who divide the principle into four notions: the principle of legality to which everyone is subjected to and is determined by an independent judiciary, where laws are public and precise. Bingham J’s eight sub rules assent to this, adding that it must protect human rights[15] and that it must be administrated without prohibitive costs or delay. Byrne and McCutcheon note that rights are therefore prescribed in legal form and may only be altered in a matter of law.

Regarding N.H.V., the plaintiff was prohibited from working in Ireland whilst applying for asylum protection. The Supreme Court held (affirming Hogan J’s dissent in the Court of Appeal) that the legislation infringed on his right of freedom to work and his livelihood, as there was no limit on the time taken for the application to process. The following regulations allowed him to be employed under the permission and administrative supervision of the Minister after 8 months of his application for protection.

This outcome exemplifies the notions of the rule of law discussed above. Bingham’s fifth sub rule is shown in the new regulation as is Hogan and Morgan’s second, with the Oireachtas amending the act and repealing others to comply with the Constitution. Glimpses of Aristotelian equality can also be seen, with section 20 and part 11 of the 2005 Act,  where applicants are subject to the same detention regulations as citizens. His rights were duly regarded to, subject to governmental democracy. With the Oireachtas adjusting their statutes as such, the separation of powers is respected, another vital element of the rule of law.

When presented with measures from the judicial branch supported by strong legal reasoning, the Oireachtas becomes more pressured and incentivised to alter the political landscape through the Dáil that adhere more closely to the spirit of the Irish Constitution as it has been laid out by our judiciary.

This response showcases the rule of law in action and signifies the Irish legal and political system’s continued compliance with it. Although the status of socio-economic rights remain uncertain given previous decisions, contentious matters that have been deemed to directly affect a person’s dignity and human rights are being eroded by the judiciary, and it remains now to be seen when the Oireachtas will follow suit.



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