Short thread on the Supreme Court ruling this week in Damache v Minister for Justice - which finds that the legislative process for revoking citizenship in Ireland is unconstitutional https://courts.ie/viewer/pdf/9f6e2c6d-eb77-4c9f-ad57-fffe7ffc65f6/2020_IESC_63%20(Unapproved).pdf/pdf#view=fitH

Basically, the constitutional complaint was that the decision to revoke citizenship is both initiated and ultimately made by the Minister for Justice, despite the fact s/he is advised by a Committee of Inquiry convened under the Act.

This is a two-fold complaint. First, the unsuccessful argument: Damache argues that revoking citizenship has such far-reaching effects that it constitutionally must be done by a court - that it's a part of the judicial function, under the separation of powers.

the Supreme Court rejects this because it does not meet all the criteria for a 'judicial' function of the type that must be vested in judges: in particular, it is historically a part of the executive function of the state, along with immigration powers. Therefore ...

... there's nothing to prevent the legislation from giving the Minister this power, as long as the process if fair. It's not inherently a judicial function of the type that constitutionally must be vested in courts, but it must be exercised in a 'judicial' manner, i.e. fairly.

that brings me to the second constitutional argument, which ultimately succeeded. Basically, the court finds that there is a kind of bias or pre-judgement built into the legislative process for revocation.

Why? because the Minister both initiates the process but ultimately decides/adjudicates the matter as well. The constitutional right to fair procedures means that decision-makers cannot combine roles - prosecution, complaint, adjudication.

In other words, the risk in the statutory process set out is that the person ultimately deciding the matter will have prejudged it by having also been the initial complainant.

The crux of the judgment is really in para. 128: 'The same person who initiated the process, whose representatives make the case for revocation ... ultimately makes the decision to revoke.'

I think the judgment makes a lot of sense, and I agree with this conclusion. However, there is one thing I would be concerned about. The Court describes revocation of citizenship as being part of the 'executive function'. What this means is that it falls within a vague zone of...

... power that constitutionally vests in the Government. There is a lot of ambiguity as to what is inherently the constitutional power of the Executive (Government), because in practice, almost all of its powers are defined by the Oireachtas through legislation. Which is good!

However, there has long been uncertainty as to whether the Government enjoys a kind of reserve domain of constitutional power independently of any legislative authorisation. This is all the more unclear for the fact that Courts ditched the royal prerogative (the British version).

After the abolition of the prerogative, it might have seemed safe to say that the legal powers of Government were almost entirely dependent on legislation, save for a few power explicitly conferred on it directly by the Constitution. I think this *should* be the position ...

... however, some case law has suggested there may in fact be a more capacious executive power in constitutional law existing outside any legislative grant of power, & that the government's exec powers are not exhausted by the specific powers explicitly given in the Constitution.

for example, in the 90s it was held that control of immigration was inherently part of the executive power, despite there being a legislative framework for it. Even last week, the High Court's Ryanair ruling referred to the Govt's Covid advice falling under the 'executive power'

While there are no obvious practical implications for now, I would be concerned about any trend towards identifying a free-floating, ill-defined reserve of executive power in Constitutional law. In a parliamentary system, the parliament should delineate executive power.

it may be argued that there are practical reasons for an inchoate or reserve executive power to cover contingencies not foreseen in legislation based on the common good. But it should be up to the parliament to judge the common good - at speed, if necessary.

In that light, I think a better way of framing the issue in Damache would be to say that this is a power the Oireachtas is free to confer on the executive, rather than saying it is inherently an executive power.

Anyway, would be interested in thoughts on that last point from @LaurCah @Caseyco231 @DonalkCoffey in particular.