Written by:
Gillian O'Hanlon BL
Case Reporter
Supreme Court: Turf cutters lose challenge to s.3 of the European Communities Act 1972 (as amended)
Reading time: 7 minutes
Written by:
Gillian O'Hanlon BL
Case Reporter
The Supreme Court has determined that the ministerial creation of the indictable offence of refusing to permit access by authorised officers to inspect private boglands was not an abdication of the Oireachtas’ legislative power.
About this case:
- Citation:[2024] IESC 45
- Judgment:
- Court:Supreme Court
- Judge:Mr Justice Peter Charleton
Delivering the lead judgment for the Supreme Court, Mr Justice Peter Charleton opined: “In truth, the prescriptive nature of the Habitats Directive means any command over policy left over to member states has, like in the leading case of Maher, been reduced almost to vanishing point. In these circumstances, the defined subject-matter, objective, guidance and boundaries, for subsidiary law-making has already been decided.”
Background
The appellants exercised rights of turbary or turf-cutting on their private boglands in Co Longford.
Pursuant to the European Communities (Birds and Habitats) Regulations 2011, S.I. 477/2011, which regulations gave effect to Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora, the appellants were charged with the offence of refusing to allow authorised officers to access and to inspect their boglands in 2012.
The appellants challenged the transposition of the Directive and s.3 of the European Communities Act 1972 (as amended by the European Communities Act 2007) which permitted a minister, in implementing a measure required by European law, to create indictable offences punishable by up to three years’ imprisonment or a fine of up to €500,000.
In circumstances where prior to its 2007 amendment, the 1972 Act enforced transposed European legislation through summary prosecution only, the appellants maintained that this development was an abdication of the Oireachtas of its exclusive legislative power.
By reason of the decision of the High Court in O’Connor & McCarthy v The People (DPP) & Others [2015] IEHC 558 upholding the 2011 regulations, which decision was upheld on appeal, the appellants accepted that they could not maintain a direct challenge to the validity of the 2011 regulations, but maintained their challenge to s.3 of the 1972 Act.
The High Court
The appellant’s appeal was dismissed by Mr Justice Garrett Simons in the High Court, finding that s.3(3) of the 1972 Act did not constitute an unconstitutional delegation of legislative power by the Oireachtas.
Leave to appeal to the Supreme Court was granted in respect of a single issue, being whether it is constitutionally permissible for a minister to create an indictable offence by regulations made under s.3 of the 1972 Act.
The Supreme Court
Mr Justice Charleton considered that the introduction of the European Communities Act 2007 provided for the first time for ministerial regulations to create offences triable either summarily or on indictment, with a maximum penalty for each offence of up to three years’ imprisonment.
The judge noted: “In addition to Article 15.2.1° of the Constitution providing that the ‘sole and exclusive law-making power is vested in the Oireachtas’, there is a parallel legal order created by Ireland’s membership of the European Union.”
The court pointed out that there are “two essential contexts” impacting on the validity of delegated legislation where a measure is necessitated by EU membership, being the parent legislation of the regulation becoming a EU measure instead of an Act of the Oireachtas, and the duty of compliance with European law enabling such subsidiary legislation to have validity on a different basis than subsidiary domestic legislation, where that regulation is necessary by virtue of the obligation to comply with the parent legislative measure.
The court highlighted that where legislation comes from a European law obligation, it is against that parent measure that the delegated legislation is to be assessed. Accordingly, the central issue to be determined was whether moving from a limitation of summary prosecution to enforce European law to one of disposal on indictment was an abdication by the Oireachtas of their sole and exclusive law-making power.
Mr Justice Charleton restated the relevant propositions arising from Naisiúnta Léictreach Contraitheoir Éireann Coideachta Faoi Theorainn Ráthaoichta v Labour Court & Ors [2021] IESC 36 and John Conway v An Bord Pleanála & Ors [2024] IESC 34 as follows:
“The only test for a challenge to subsidiary legislation on the basis of vires, or authority to promulgate the measure, is whether there has been an abdication by the Oireachtas of its sole and exclusive law-making authority under Article 15.2.1º of the Constitution.
“What requires examination in such a challenge is whether what the delegate is to do is sufficiently bounded by the terms of the parent legislation, be it an Act of the Oireachtas or a measure necessitated by European law, and guided as to the nature of the choices to be made by the subsidiary.
“Of necessity, a choice as to the subject matter of what is delegated may lawfully, within those boundaries and subject to that guidance, be left to be made by the delegate.
“Where the choice made is one of fundamental policy, as opposed to a limited and guided choice based on the overall text of the legislation delegating the power to make subsidiary legislation, then an abdication of the exclusive lawmaking power of the Oireachtas is manifest.
“That control has been retained by the Oireachtas, either in the form of requiring a positive vote to confirm subsidiary legislation or by the less strong control of requiring a vote of nullification within a particular timeframe, may be important but is not essential since some subsidiary legislation is not subject to that scrutiny.
“Article 15.2.1º is the issue and Article 5 and Article 6 are not to be brought into the equation, being liable both to confuse and being instead addressed to the fundamental structures of the Constitution, rather than representing components of the validity of delegation of the legislative function.”
The court considered that the issue of whether the offence with which the appellants were charged was lawfully created was dependent upon:
- whether it was lawful to utilise s.3 of the 1972 Act to create the offence;
- whether it was objectively necessary to create the offence; and
- whether sufficient guidance in the Directive and clear boundaries as to competency in that limited conferral of choice, enabled a measure such as that in question.
Addressing those queries, Mr Justice Charleton highlighted inter alia that: the power to amend primary legislation by regulations made under the 1972 Act was upheld in Meagher v Minister for Agriculture [1994] 1 IR 329; that necessity was to be considered by reference to the content of the implementing instrument as per Maher v The Minister for Agriculture [2001] 2 IR 139 and that notwithstanding that the Directive did not expressly require criminal measures, member states were empowered to take “all appropriate steps” to protect habitats and; in light of the objectives of and guidance in the Directive, very serious infringements of habitats readily must be within the scope of the kind of conduct that the Directive forbids.
Having regard to “thicket of legal authorities”, Mr Justice Charleton found inter alia that it was within the legislature’s competence to delegate the power to create indicatable offences to the minister, that member states’ command over policy has been reduced “almost to vanishing point” by the prescriptive nature of the Directive and so the defined subject-matter, objective, guidance and boundaries for subsidiary law-making had already been decided, that the Supreme Court in considering the regulation was acting as a safeguard, and that the subsidiary legislation was necessary to fulfil Ireland’s obligations under European law.
Conclusion
Accordingly, the Supreme Court dismissed the appeal.
Gearty & Anor v. Director of Public Prosecutions & Ors [2024] IESC 45
Share this article:
Subscribe to our newsletter to not miss articles like this one:
SUBSCRIBE
