Guest Contribution: McMahon on The Long and Winding Road to Immigration Legislation in Ireland

We are delighted to welcome this guest contribution from Niamh McMahon, who is a PhD candidate at the Department of Politics and International Studies at the University of Cambridge. In this post Niamh applies her interest in policy-making processes and learning to the continuing efforts to introduce immigration legislation in Ireland. You can learn more about Niamh on the Guests page.

Although the inadequacies of the Immigration, Residence and Protection (IRP) Bill 2008 had been voiced by both Opposition politicians and civil society, nevertheless it came as something of a shock that Minister for Justice Dermot Ahern (left) at the end of May announced his withdrawal of the Bill which was at report stage after having been subjected to 18 days debate at committee stage and hundreds of amendments tabled (Irish Times report). Ahern noted that the IRP Bill, which had become a ‘massive tome’, would be withdrawn and republished as a new Bill to take account of ‘several hundred amendments’ as doing so would be quicker than to continue work on the current Bill. Mixed feelings have been voiced as a result, with some hoping that this will finally bring about an integrated, efficient and fair law which outlines Ireland’s policy on immigration, while others see this action as evidence of yet more bad decision-making in this field (See here and here). For those who have long called for immigration legislation in Ireland this may seem like just another ill-fated event in the now extremely long and winding path towards immigration legislation.

As is well known, immigration remains regulated by a series of provisions put into place from 1935 to 2006. Calls for a more overarching law which took account of the changes in migratory flows in an efficient and integrated way became ever louder during the 2000s. Progress was halting, with efforts to develop legislation often attempted but an integrated solution, and even clearly defined objectives, remained elusive. In the 2006 Screening Regulatory Impact Analysis (RIA) outlining the need for a new overarching law revoking other legislation, the Government admitted that ‘there have of necessity been stop-gap measures generally, brought forward to address specific aspects of immigration that needed an urgent legislative response’. The aim was to provide ‘a root-and-branch replacement of the present law with a view to putting in place a modern legislative framework for managing migration’ and both the 2007 and 2008 IRP Bill promised fairness, transparency and efficiency. Many bodies and civil society such as the Irish Human Rights Commission and Law Society of Ireland, however, found many substantive aspects of the Bill extremely problematic, including provisions on deportation, detention and family reunification, and many believed that immigration and protection should be dealt with in separate bills, all of which have been discussed in much depth elsewhere (IHRC, Law Society Gazette, Eugene Quinn). Rather than re-examine these substantive issues, the focus here is upon decision-making and legislative processes, which are all the more pertinent given the Minister for Justice’s decision to have a new Bill drafted.

Given the gap in legislation, there was consensus that legislative updating was required to take account of new migratory flows. The form that this legislation would take had the potential to bring much debate, touching as it does on notions of the state, sovereignty and the nation. While some may suggest that immigration policymaking is no longer confined narrowly to ministerial and administrative discretion and the influence of courts and interest groups as well European and international factors must be taken into account, others argue that the field is in fact often elite-dominated and strongly driven by the executive. In the preliminary section of the 2007 IRP Bill a saver for inherent executive power was noted. In the 2008 Bill this saver no longer appears having caused some controversy, but still appears in the explanatory memorandum. Many voiced their opposition to this statutory framework or legal skeleton approach, which allowed great latitude to the Minister and left many areas open to administrative regulation as different situations arose and which therefore brings to the table issues of unfettered ministerial discretion (parliamentary debates). This approach is worrying especially if it is the case that there is no overarching policy declaration on Ireland’s position in relation to immigration.

Policy-making and legislation-drafting are admittedly not easy tasks and require alongside a keen sense of the political, social and cultural climate, an understanding of the issues and challenges at hand, and knowledge of alternative responses. While legislation is of course drafted by specialist barristers in the Office of the Parliamentary Counsel to Government, they have been provided by the Department with a general scheme of the proposed bill in numbered heads, with instructions for drafting and explanatory notes. Drafting of the IRP Bill was acknowledged by Government to be taking up a considerable amount of the drafters’ time. While the Bill ran to over 140 pages, what seems to not have been communicated is any clear policy stance or general principles and much regulation was actually left open for future determination by the Minister. Pat Rabbitte described the Bill as a

legislative framework designed to be capable of accommodating any conceivable immigration policy, from open doors to iron curtain, with room for all sorts of intermediate schemes based on skills, countries of origin or any other quota system. The legislation must be drafted by reference to the policy and it follows that the policy must be decided first. To pass an Immigration Act and afterwards decide an immigration policy is like having the OPW design a public building without first knowing whether it should be a school, a prison or a hospital.

In April 2005 a discussion document entitled Immigration and Residence in Ireland: Outline Proposals for an Immigration and Residence Bill was published and, as was noted in the subsequent Screening RIA which aims to bring evaluation prior to decision-making, ‘a sizeable and generally positive public response’ to this document was received amounting to 120 submissions. These submissions were not published and therefore the extent to which they affected the substance of the Bill is not quantifiable, but from the Immigrant Council of Ireland’s document, one can see the issues that were raised but yet made their way into the Bill. Similar to the conclusions in the 2008 evaluation report on RIAs, it is not clear that the RIA here had sufficiently detailed analysis or consultation (Tom Ferris, “Challenges for Regulatory Impact Analysis”).  As Barry notes, ‘valid criticisms, even from within the expert community can be ignored when policy advice and decision making takes place behind firmly closed doors’.

In introducing the Bill and throughout the committee stage, the Minister at the time Brian Lenihan, made it known that there was a great openness to amendments from others, but also acknowledged that the Government would make amendments themselves as they went along. As the committee stage allows the Bill to be examined section by section, taking into consideration submissions by interest groups and the Opposition, some Bills like the IRP Bill can be debated for several days, hundreds of amendments can be tabled and the process can become very politicised. The IRP Bill was discussed for 18 days and 700 amendments tabled. One might suggest that there was a lack of planning in proposing a Bill in need of so much amendment and that producing Green and White Papers in advance and engaging in more detailed and focused debates and consultation may have avoided such disagreement.

The Bill ended the committee stage in November 2008 and was meant to proceed to report stage. Until Ahern’s decision that the Bill was to be withdrawn, the standard answer given by Government was that the Bill was being prepared at report stage. Legislating in this field has been said to be a matter of urgency for many years now. This sense of urgency may actually have been to the detriment of good policymaking as a considered and deliberated response which was a result of consultation and collaboration with those with expertise may have actually been more rapid and ultimately more efficient. Publishing the heads of the Bill before committee stage may have meant that debate could have been had prior to the completion of the drafting process and brought more constructive engagement.

Many questions remain open at this time. It seems unlikely that all those amendments that were tabled will be integrated into the new Bill, but while the Minister said that ‘some’ would be integrated, which will those be? It is also unclear whether only the drafters will be involved in this Bill or whether there will be further consultation, deeper evaluation or professional or expert advice. We may also see a situation where there is a more clear statement of policy and principles, and also lesser powers left in the hands of the Minister, but will those policies and principles be at odds with much of the legislature? Also what happens if the new Bill does not attend to the issues of concern and dissatisfaction is once again voiced by the Opposition and civil society? Will there be time to listen to and heed these voices? The Immigration Bill in 2004 and that of 2007 were noted as being draconian and discriminative and yet similar problems were noted with the 2008 Bill. Is there hope that this new Bill will be different? The new Bill will emerge in very different economic and political times and the changed economic climate and lesser numbers of migrants arriving in Ireland may affect the priorities of Government. Migration has in some senses slipped from the political and media agenda, as perhaps evidenced by the low coverage of the commencement of a new immigration bill and this may also suggest a different way forward. One thing that seems sure is that there will be more twists and turns along the way.

Guest Contribution: McMahon on The Long and Winding Road to Immigration Legislation in Ireland

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