Supreme Court dismisses appeal where Minister's order creating indictable offence was ultra vires the 1959 Act.

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

139/02

BETWEEN

VINCENT BROWNE

APPLICANT

AND

THE ATTORNEY GENERAL, THE MINISTER FOR THE MARINE AND NATURAL RESOURCES, IRELAND AND DISTRICT JUDGE JAMES

O’CONNOR

RESPONDENTS

JUDGMENT delivered the 16th day of July, 2003, by Keane C.J.

The Factual Background

The plaintiff is the master of an Irish fishing vessel, the MFV “Antonia”. His livelihood depends principally on fishing for tuna and he is a

member of the Irish Tuna Association. On the 24th June 2000 the Antonia was fishing for tuna in an area of the Atlantic some 400

miles southwest of Dingle and 200 miles outside the exclusive fishery limits of the State. While it was so engaged, it was boarded by a

party from an Irish naval vessel led by Sub-Lieutenant Bernard Heffernan. The applicant having confirmed that he was fishing for

tuna, his fishing gear and nets were inspected. He was asked to shoot all the nets on board in the water and, this having been done,

they were measured. He was then advised that he and the boat were being detained on suspicion of having in excess of the

permitted quantity of drift nets on board and that they would be escorted to Castletownbere. The vessel and gear were subsequently

detained by an order of the fourth named respondent and the applicant was charged with two charges of being in breach of the

relevant regulations. The fourth named respondent returned the applicant for trial to the Cork Circuit Court, but on the 19th

December 2000 he was given leave by the High Court to apply for orders of prohibition and certiorari in respect of these proceedings

on a number of grounds to which I shall refer in more detail at a later stage. A statement of opposition having been filed on behalf of

the respondents, the judicial review proceedings came on for hearing before Kearns J. In a reserved judgment delivered on the 6th

March 2002 he granted the applicant inter alia an order of prohibition restraining the first named respondent from prosecuting the

applicant on the charges in question. From that judgment and order, the appellants now appeal to this court.

The background to the litigation is a maze of Acts of the Oireachtas and orders made thereunder and regulations of the European

Union. However, before identifying the particular provisions which gave rise to the detention of the MFV Antonia and the prosecution

of the applicant, the factual context of the regulatory scheme, of which, it was alleged, the applicant had fallen foul must be

explained in more detail.

From the late 1980’s onwards, there has been concern at an international level over the potentially damaging effects of the use of

drift nets for fishing on the ground that it constitutes an indiscriminate and wasteful method of fishing with harmful consequences for

the conservation of natural resources. One particular cause of concern was that they resulted in catches of cetaceans or marine

mammals such as dolphins.

Since the early 1990’s, Irish fishing vessels have been fishing for albacore tuna in the northeast Atlantic by means of drift nets. An EC

regulation (Council Regulation (EC) 984/97 of April 29th 1997) provided that, as from January 1st, 2002, no vessel was to keep on

board any drift nets intended for the capture of certain species of fish, including albacore tuna. Until December 31st’ 2001, the

regulations provided for a transitional regime, under which a vessel could keep on board for use as nets for fishing one or more drift

nets the total length of which did not exceed 2.5 kilometres provided that it was authorised so to do by the competent authorities of

the relevant member state, (in Ireland the second named respondent (“the Minister”)). There were also restrictions on the number of

authorisations that could be granted by the member state during the transitional period.

When the Antonia was boarded by Sub-Lieutenant Heffernan and his party on the day in question, he was told by the applicant that

there were 2.5 kilometres of drift net stowed in the pen on the vessel. When this net was shot at the request of Sub-Lieutenant

Heffernan, the crew of the fishing vessel attached floatation buoys on to lines on the net. These lines were fixed to the surface line

of the net, i.e., the line that has smaller buoys permanently attached to it. It is not in dispute that such a net is a “drift net” within

the meaning of the relevant Irish regulation relied on by the first named respondent in the pending proceedings, i.e.,

“A wall of netting used in fishing, which is free to move according to the wind and tide.”

When measured by one of the boarding party, it was found to be 2.545 kilometres in length, i.e., only marginally longer than the

length permitted under the relevant regulations.

However, there was a second net in the pen which the applicant said was a “bottom set gill net”, i.e., a net of a type which could be

anchored to the sea bed so that it could not drift with the wind and tide. When the applicant was told by Lieutenant Heffernan that

he wanted to measure this net also, the applicant asked whether he could attach anchors to it, but this request was refused. The

net was then shot and measured in the same manner as the first net and was found to be 4.554 kilometres in length. The applicant

claims that this is not a “drift net” within the meaning of the relevant regulations, that it was not being used for fishing when the

boarding party intervened as the waters were too deep, but that, as the boat came to shallower water, the net would be used with

anchors attached.

Whether the second net was a “drift net” for the purposes of the relevant regulation is, it is accepted, a matter that would have to

be determined in the pending criminal trial, if it was allowed to proceed. The Attorney General and the Minister contended that the

carrying on board the vessel of a net of these dimensions is in breach of the relevant regulation and the fact that there were anchors

and fittings on board which could secure it to the ocean bed did not prevent it from coming into the category of a drift net.

The detention order granted by the fourth named respondent was for 48 hours, during which time the catch was offloaded and sold,

the proceeds of £16,900 being retained pending the outcome of the prosecution. The applicant having waived any preliminary

examination, he was returned for trial on two charges. The first was that he

“did keep on board the said sea fishing vessel, a drift net prohibited by Article 11 of Council Regulation (EC) No. 894/97 of the

29th April 1997 as amended by Council Regulation (EC) No. 1239/98 of the 8th June 1998 and of para. 4 of the Sea Fisheries

Drift Net Order, 1998 SI. 267/98 contrary to S223A of the Fisheries (Consolidation) Act, 1959, as amended by the Fisheries

(Amendment) Acts 1978, 1983 and 1994.”

The second charge was that the applicant

“did use for fishing one or more drift nets prohibited by Article 11 of Council Regulation (EC) 894/97 of 29th April 1997 as

amended by Council Regulation (EC) No. 1239/98 of the 8th June 1998 and contrary to Article 3 of the Sea Fisheries (Drift

Nets) Order 1998 SI 267/89 contrary to S. 223A of the Fisheries (Consolidation) Act 1959 as amended by the Fisheries

(Amendment) Acts 1978, 1983 and 1994.”

At every stage of these procedures, the solicitor for the applicant objected that there was no jurisdiction to detain the vessel and

gear and prosecute the applicant for an offence allegedly committed on the high seas outside the exclusive fishing limits of the State.

The vessel was released to the applicant subsequent to the entry by him of bail bonds to secure its release.

The grounds on which the High Court granted leave to apply by way of judicial review for the reliefs ultimately granted can be

summarised as follows:

(1) The Sea Fisheries (Drift Nets) Order 1998 (SI.267 of 1998), (hereafter “the 1998 Order”) of which the applicant was alleged

to be in breach, was ultra vires the powers of the Minister, having been made in purported exercise of powers conferred on him

by S.223A of the Fisheries (Consolidation) Act 1959 as amended and not in exercise of the powers conferred on the Minister by

S.3(1) of the European Communities Act 1972 as amended.

(2) The 1998 order is ultra vires the powers conferred on the Minister by S.223A of the 1959 Act in purporting to authorise the

creation by the Minister of an indictable offence outside the exclusive fisheries limits of the State.

(3) Alternatively, if the said regulations are intra vires S.223A, the latter section constituted an impermissible delegation of law

making power by the Oireachtas to the Minister, contrary to Article 15 of the Constitution;

(4) Council Regulation (EC) No. 1239/98 (hereafter “the 1998 Council Regulation”) is unlawful and invalid as inter alia being

contrary to the aims of the common fisheries policy, violating the principles of proportionality and infringing the applicant’s

legitimate expectation of the right to earn a living by way of drift net fishing and the principle of non-discrimination.

In his judgment, the learned High Court judge found in favour of the applicant on the first and second grounds and it was accordingly

unnecessary for him to reach any conclusion as to the constitutionality of S.223A of the 1959 Act or as to whether the 1998 Council

Regulation was unlawful and invalid and, accordingly, neither of these grounds was the subject of any submissions to this court.

It should, however, be pointed out that proceedings were instituted in the Court of First Instance of the European Communities in

case T-138/98 entitled Armenent Cooperative Artisinal Vendeen (ACAV) and Others –v- The Council of the European Union seeking

the setting aside of the 1998 Council Regulation and that members of the Irish Tuna Association, including the applicant, were given

leave to intervene in that case. Ireland also intervened in the proceedings and supported the application to set aside the regulation.

In its judgment of 22nd February 2000, the Court of First Instance dismissed the action as inadmissible.

The Regulatory Framework

The 1998 Council Regulation is an EC measure laying down certain technical measures for the conservation of fishery resources. It

amended an earlier Regulation (Council Regulation (EC) 894/97.) Articles 11 and 11a provide as follows:

“Article 11

No vessel may keep on board, or use for fishing, one or more drift nets whose individual or total length is more than 2.5

kilometres.

“Article 11a

“1. From 1st January 2002, no vessel may keep on board, or use for fishing, one or more drift nets intended for the

capture of species listed in Annex VIII.

2. From 1st January 2002, it is prohibited to land species listed in Annex VIII which have been caught in drift nets.

3. Until 31st December 2001, a vessel may keep on board, or use for fishing, one or more drift nets referred to in

paragraph 1 after receiving authorisation from the competent authorities of the flag member state. In 1998, the

maximum number of vessels which may be authorised by a member state to keep on board, or use for fishing, one or

more drift nets shall not exceed 60% of the fishing vessels which used one or more drift nets during the period 1995 –

1997.

4. Member states shall communicate to the Commission for each target species by 30th April of each year, the list of

vessels authorised to carry out fishing activities using the drift nets referred to in paragraph 3; for 1998, the information

shall be sent not later than 31st July 1998.”

One of the species listed in Annex VIII is albacore tuna.

Council Regulation (EEC) No. 2847/93 of 12th October 1993 (hereafter “the 1993 Council Regulation”) is a measure establishing a

control system applicable to the common fisheries policy binding on the member states under the provisions of the Treaty of Rome.

Article 31 provides that

“1. Member states shall ensure that the appropriate measures be taken, including of (sic) administrative action or criminal

proceedings in conformity with their national law, against the natural or legal persons responsible where common fisheries

policy have not been respected, in particular following a monitoring or inspection carried out pursuant to this Regulation.

2. The proceedings initiated pursuant to paragraph 1 shall be capable, in accordance with the relevant provisions of national

law, of effectively depriving those responsible of the economic benefit of the infringements or of producing results

proportionate to the seriousness of such infringements, effectively discouraging further offences of the same kind.

3. The sanctions arising from the proceedings mentioned in paragraph 2 may include depending on the gravity of the offence:

- Fine,

- Seizure of prohibited fishing gear and catches,

- Sequestration of the vessel,

- Temporary immobilisation of the vessel,

- Suspension of the licence,

- Withdrawal of the licence.”

The relevant provisions of the 1998 Order are as follows:

“I, Michael Woods, Minister for the Marine and Natural Resources, in exercise of the powers conferred on me by S.223A

(inserted by S.9 of the Fisheries (Amendment) Act 1978 (No. 18 of 1978)), and amended by S.4 of the Fisheries (Amendment)

Act, 1983 (No. 27 of 1983)) of the Fisheries (Consolidation) Act, 1959 (No. 14 of 1959) and the Fisheries (Transfer of

Departmental Administration and Ministerial Functions (Order, 1977) (S.I. 30 of 1977) (as adapted by the Marine (Alteration of

Name and Department and Title of Minister)) Order 1997 (S.I. No. 301 of 1997)), for the purpose of giving effect to Council

Regulation (EC) No. 1239/98 of 8th June 1998 [“the 1998 Council Regulation”] hereby order as follows:

2. In this order -……

“Drift nets” means a wall of netting used in fishing, which is free to move according to tide and wind conditions.

3(1) Subject to Article 4 of this order, the master of an Irish sea fishing boat shall comply with Articles 11, 11a and 11b of the

Council Regulation [“the 1998 Council Regulation”].

(2). Subject to Article 4 of this order, the master, owner, charterer or hirer of an Irish sea fishing boat shall not cause or

permit a person on board the boat to fail to comply with Articles 11, 11a or 11b of the Council Regulation.

(3). Subject to Article 5 of this order, the master of a foreign sea fishing boat, in the exclusive fishing limits of the State, shall

comply with Articles 11, 11a and 11b of the Council Regulation.

(4) Subject to Article 5 of this order, the master, owner, charterer or hirer of a foreign sea fishing boat shall not cause or

permit a person on board the boat, in the exclusive fishery limits of the State, to fail to comply with Articles 11, 11a or 11b of

the Council Regulation.

4(1) The holder of an authorisation granted under Article 6 of this order may keep on board an Irish sea fishing boat to which

the authorisation relates, or use for fishing from the boat, one or more drift nets whose individual or total length is not more

than 2.5 kilometres, intended for the capture of species listed in the Annex, or cause or permit such a boat or any person to

keep on board, or use for fishing from the boat, one or more such drift nets, intended for the capture of species listed in the

annex.

(2) This Article shall cease to have effect on the 1st day of January, 2002.”

There follows an article entitling the holder of an equivalent authorisation to keep on board a foreign sea fishing boat drift nets of the

prescribed length within the exclusive fishery limits of the State, which Article was also to cease to have effect on the 1st January

2002. Article 6 then goes on to provide for the granting by the Minister of the necessary authorisations and contains ancillary

provisions relating thereto.

Finally, Article 7 revokes the Sea Fisheries (International Waters) (Drift Net) Order 1994, (hereafter “the 1994 Order”) and the Sea

Fisheries (Drift Net) Order 1995 (hereafter “the 1995 Order”).

The 1994 Order, which was also made in purported exercise of the powers conferred on the Minister by S.223A of the Fisheries

Consolidation Act 1959, provided that the provisions of Article 9a of an earlier Council Regulation (Council Regulation (EEC) No.

3094/86) as amended by Council Regulation (EEC) No. 345/92 of 27th January, 1992 (2), were thereby prescribed and adopted and

that, accordingly, any infringement of Article 9a(1) of the Council Regulation outside the exclusive fishery limits of the State in

relation to an Irish fishing vessel or by a person on board an Irish sea fishing vessel, after the commencement of the order was to be

an infringement of the order. The articles referred to in the earlier regulations were in similar terms to Article 11(and 11b) of the 1998

Regulation. A drift net was also defined in the same manner as in the 1998 Order.

The 1995 Order again, made in purported exercise of the powers conferred on the Minister by S.223A of the Fisheries Consolidation

Act 1959, contained a similar prohibition in respect of any vessels within the exclusive fishery limits of the State.

The Fisheries (Consolidation) Act, 1959, is, as its short title indicates, a consolidating Act which repealed and re-enacted legislation

concerned with fisheries stretching back to 1846. As originally enacted in 1959, it contained 21 parts and 335 sections. Only one part

– Part XIII containing originally 24 sections – relates exclusively to sea fisheries. Part XIII has been amended from time to time, the

first relevant amendment in the context of the present proceedings being the insertion of a new S.223A by S. 9 of the Fisheries

(Amendment) Act of 1978 which was as follows:

“223A (1) The Minister may by order prescribe and adopt such measures of conservation of fish stocks and rational

exploitation of fisheries as the Minister thinks proper.

(2) A person who contravenes or attempts to contravene an order under this section shall be guilty of an offence.

(3) The Minister may by order revoke or amend an order under this section including an order under this subsection.”

The crucial amendment for the purposes of the present proceedings was, however, effected by S.4 of the Fisheries (Amendment) Act

1983 (hereafter “the 1983 Act”) which provided that

(1) “Chapter 2 of Part XIII of the [1959 Act] is hereby amended by the substitution of the following subsections for subsection

(1) of S223A (inserted by S.9 of the Act of 1978):

“(1). The Minister may, as he shall think proper, by order, prescribe and adopt either or both of the following measures,

namely, measures of conservation of fish stocks and measures of rational exploitation of fisheries.

“(1A) Without prejudice to the generality of subsection (1) of this section, an order under this section may,

(a) relate

(i) generally to sea fishing or to sea fishing which is of a specified class or description

(ii) generally to fishing other than sea fishing or to such fishing which is of such a class or description, (iii)

generally to fisheries other than sea fisheries or to such fisheries which are of such a class or description,

(iv) generally to fishing boats (including sea fishing boats) or to fishing boats which are of such a class or

description,

(v) to boats, other than fishing boats which are of such a class or description

(b) For the purpose of enabling the order to have full effect, extend any or all of

(i) the powers conferred by this Act on a sea fisheries protection officer for the purpose of this Act

(ii) the powers so conferred on an authorised person within the meaning of Part XVIII of this Act,

(iii) the powers so conferred on authorised officers within the meaning of S.301 of this Act,

(c) include such incidental, supplementary and consequential provisions as the Minister considers appropriate, and in

case such provisions are included in such an order by virtue of paragraph (b) of this sub section, this Act shall be

construed and have effect in accordance with the terms of the order.”

By Section 5 of the Act of 1983, Chapter 2 of Part XIII of the 1959 Act was further amended by the insertion of the following section

after Section 224A:

“224B (1) Without prejudice to the generality of Section 3(1) of the Act of 1972, the Minister may by regulations make

provision to give effect within the exclusive fishery limits of the State to any provision either of the Treaties or of any Act

adopted by an institution of the European Communities which authorises any or all of the member states of the European

Communities to restrict, or otherwise regulate in a manner specified in the provision, fishing in waters, or in part of waters,

under its or their sovereignty or jurisdiction

(2) Regulations under this section may include such incidental, supplementary and consequential provisions as appear to the

Minister to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or

without modification, other law, exclusive of this Act).

(3) A person who fishes or attempts to fish in contravention of regulations under this Section shall be guilty of an offence and

shall be liable on conviction on indictment to a fine not exceeding £100,000, and, as a statutory consequence of the

conviction, to forfeiture of all or any of the following found on the boat to which the offence relates:

(a) any fish,

(b) any fishing gear.”

The “Act of 1972” referred to in subsection 1 is the European Communities Act 1972.

Section 2 of the Fisheries (Amendment) Act 1978 provides penalties for persons who are guilty of an offence of contravening or

attempting to contravene an order under Section 223A. A person guilty of an offence of contravening an order such as the 1998

Order is liable on conviction on indictment to a fine not exceeding £20,000 and to forfeiture, as a statutory consequence of

conviction of the offence, of

(a) any fish,

(b) any fishing gear, found either –

(i) on the boat to which the offence relates, or

(ii) in any other place where they may be.

Section 2 of the European Communities Act 1972 (hereafter “the 1972 Act”) provides that

“From the 1st day of January 1973, the treaties governing the European Communities and the existing and future Acts

adopted by the institutions of those communities shall be binding on the State and shall be part of the domestic law thereof

under the conditions laid down in those treaties.”

Section 3 provides that

“(1) A Minister of State may make regulations for enabling Section 2 of this Act to have full effect.

(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the

Minister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending,

or applying, with or without modification, other law, exclusive of this Act).

(3) Regulations under this section shall not create an indictable offence.

(4) Regulations under this section may be made before the 1st day of January 1973 but regulations so made shall not come

into operation before that day.”

Finally, Article 17 of the 1997 Council Regulation should be noted. It provides

“1. Member states may take measures for the conservation and management of stocks:

(a) in the case of strictly local stocks or

(b) in the form of conditions or detailed arrangements designed to limit catches by technical measures

(i) supplementing those laid down in the community legislation on fisheries, or

(ii) going beyond the minimum requirements laid down in the said legislation,

(iii) provided that such measures apply solely to the fishermen of the member state concerned, are compatible

with community law, and are in conformity with the common fisheries policy”.

The High Court Judgement

The trial judge said that it was clear from the decision of this court in Maher and Others –v- The Minister for Agriculture and

Rural Development and Others [2001] 2IR 139 that a community measure could set out the principles and policies being adopted

by the communities to such a degree as to obviate the requirement for domestic primary legislation. In such circumstances, the

relevant Minister could avail of the power conferred by S.3 of the 1972 Act to give effect to the measure in question. He said that, in

the case of the 1998 Council Regulation, there was no suggestion that any area of policy had been left for regulation by the member

states or that the 1997 Order purported to address any additional policy considerations or adopt enforcement measures that went

beyond anything contemplated in the 1998 Council Regulation. He was also of the view that, while the Fisheries Acts, 1959 – 1994

contained many principles and policies, they did not contain the principles and policies of the 1998 Council Regulation. He accordingly

concluded that the 1998 Order did not give effect to principles and policies of the Fisheries Acts 1959 – 1994, but “constituted a

completely new addition thereto.”

He was also satisfied that the Oireachtas in enacting S.223A of the 1959 Act had not intended to authorise the creation of an

indictable offence by a statutory instrument giving effect to a European Community measure, thereby bypassing the prohibition on so

doing under Section 3(3) of the 1972 Act.

The trial judge was also of the view that the 1998 Order did not expressly prohibit any infringement of Article 11 of the 1998

Regulation

outside the exclusive fishery limits of the State. He said that, if criminal liability was to be imposed for such an infringement, it could

only be done so expressly and unambiguously, and that the Order was also invalid on that ground.

Submissions of the Parties

On behalf of the respondents, Mr. Brian Murray SC accepted that, having regard to the decisions of this court in Cityview Press –v-

An Chomhairle Oiliuna [1980] IR 301, the validity of the 1998 Order depended on whether it did no more than give effect to

principles and policies contained in a parent statute. In the present case, those principles and policies were to be found, not in the

1998 Order, but in S.223A of the 1959 Act, which entitled the Minister to adopt measures of conservation of fish stocks and of

rational exploitations of fisheries, which measures in turn were to be found inter alia in the 1998 Council Regulation.

Mr. Murray submitted that, in holding that the 1998 Order did not give effect to principles and policies of the Fisheries Acts

themselves, but constituted a new addition thereto, the trial judge had adopted an unduly narrow construction of the relevant test:

the principles to which the Order was to give effect were the conservation of fish stocks and the rational exploitation of fisheries

which, of necessity, could only be implemented by reference to the common fisheries policy of the EC.

Mr. Murray further submitted that the trial judge was in error in inferring, as he appeared to have done, from the terms of S.3 of the

1972 Act that the only way in which an indictable offence could be created for the purpose of giving effect to EC measures was by

the enactment of primary legislation. There was no reason in principle why regulations could not be made under primary legislation,

rather than under S.3 of the 1972 Act, for the purpose of giving effect to the State’s obligation to implement community law. He said

that it was clear from the terms of Article 31 of the 1993 Council Regulation that any sanction for the breach of the relevant

regulation would have to be commensurate with the seriousness of the infringement and this inevitably meant, in this jurisdiction, the

creation of an indictable offence.

Mr. Murray further submitted that the invocation by the Minister of S.223A(1) of the 1959 Act was in accordance with the law as laid

down by this court in Maher, since in so doing he was adopting measures for the purpose of giving effect to a community regulation

which was directly applicable in Irish law.

Mr. Murray further submitted that, if as argued on behalf of the applicant, S.223A could not be availed of by the Minister to make the

1998 Order the question inevitably arose as to what the purpose was of the Oireachtas in empowering the Minister to adopt and

prescribe measures in the case of sea fisheries for the stated purposes. The section in that form had been enacted by the Oireachtas

in 1983 at a stage, when, with insignificant exceptions, the determination of policy in those areas was within the exclusive

competence of the EC.

Mr. Murray further submitted that the trial judge was in error in supposing that it was not within the jurisdiction of the Oireachtas to

create an indictable offence on the high seas outside the exclusive fishery limits of the State. It was clear that, in Irish law, civil and

criminal jurisdiction extended to Irish registered vessels whether they were within the jurisdiction of the State or not.

On behalf of the applicant, Mr. Hogan SC submitted that the nature in law of the 1998 Order was not in doubt: it was an attempt to

give effect by means of delegated legislation to the principles and policies contained in the 1998 Council Regulation. While a Minister

in his particular area of responsibility was undoubtedly entitled to give effect to principles and policies which had never been enacted

by the Oireachtas but were contained in an EC measure, that could only be done by invoking the powers conferred on ministers by

S.3 of the 1972 Act. Where a Minister availed of those powers, as he could have done in this case, he was precluded from including in

the instrument a provision for the creation of an indictable offence. That was clearly intended by the Oireachtas as an important

limitation on the power of ministers to give effect by delegated legislation to EC measures and they could not have envisaged that a

Minister would circumvent that prohibition by purporting to make the order under other legislation which contained no indication that it

was intended to be used for the purpose of giving effect to EC measures.

Mr. Hogan submitted that this was reinforced by the difference in wording between S.223A and 224B of the 1959 Act, which had both

been inserted by the Act of 1983. Where the Oireachtas wished to create an indictable offence for the breach of EC measures within

the exclusive fishery limits of the State, the Minister had been expressly given power to make such regulations for the purpose of

giving effect to those EC measures and this was stated to be “without prejudice to the generality of S.3(1) of the Act of 1972”. The

suggestion that the Oireachtas had enacted a similar provision for giving effect to EC measures outside the exclusive fishery limits of

the State by enacting S.223A was wholly implausible.

Mr. Hogan further submitted that it did not follow that, because S.223A of the 1959 Act did not empower the Minister to make the

1998 Order, it was in some sense otiose. In the first place, while the jurisdiction of the EC as to fisheries was confined to the maritime

waters of the community, S.223A was not confined to sea fisheries: it also applied to the conservation and rational exploitation of

inland fisheries in respect of which the EC had no jurisdiction. In any event, the terms of Article 17 of the 1997 Council Regulation

made it clear that member states retained a limited jurisdiction in respect of conservation and management measures applicable solely

to the fishermen of the member state concerned.

Conclusions

It is accepted in this case that the 1998 Council Regulation, which prohibits the use by vessels of any of the member states, either

within their exclusive fishery limits or on the high seas, of drift nets exceeding 12.5 kilometres in length for the purpose of catching

albacore tuna is directly applicable in the State to the same extent as if it were an Act of the Oireachtas. As is normally the case

with EC measures, it is left to the member states to provide for the effective policing of the measure in question in whatever is the

appropriate manner having regard to the laws of the Member State concerned. It is not in dispute in this case that, in these

circumstances, the Minister was empowered by S.3 of the 1972 Act to make regulations for that purpose, even though the principles

and policies which were being given effect to were not prescribed by the Oireachtas in primary legislation. It is clear from the

decisions of this court in Meagher –v- Minister for Agriculture and Food [1994] 1IR 329 and Maher –v Minister for Agriculture and

Rural Development and Others that the fact that, in such cases, the principles and policies to which the regulation gives effect are

not to be found in any Act of the Oireachtas, but rather in the community measure concerned, does not affect its constitutional

validity. It is beyond argument at this stage that the law as laid down by this court in Cityview Press Limited –v- An Chomhairle

Oiliuna, that secondary legislation will trespass on the exclusive law making role of the Oireachtas unless it does no more than give

effect to principles and policies laid down in an Act of the Oireachtas, is not applicable to regulations intended to give effect, by

virtue of S.3 of the 1972 Act, to EC measures such as the 1998 Council Regulation. There is, however, one crucial qualification to

that general statement of the law, namely, that any such regulation cannot create an indictable offence.

It is clear, in this case, that the 1998 Order was intended to give effect to the principles and policies as to the conservation of

fishery resources adopted by the Council in Council Regulation 1998. There is not any Act of the Oireachtas in existence setting out

principles and policies applicable to the conservation of fishery resources both within the exclusive fishery limits of the State and on

the high seas. As is clear from the judgment of the Court of Justice in Commission of the European Communities –v- United Kingdom

of Great Britain and Northern Ireland (Case 804/79), since the 1st January 1979, the power to adopt, as part of the common fisheries

policy, measures relating to the conservation of the resources of the sea has been vested exclusively in the communities.

I am satisfied that it follows inevitably that the 1998 Order was not intended to give effect to principles and policies set out by the

Oireachtas in parent legislation. It was intended simply to give effect to the principles and policies adopted by the communities in

Council Regulation 1998, as, indeed, the terms of the order itself make unambiguously clear: the Minister while purportedly invoking

powers conferred on him by S.223A of the 1998 Act says in express terms that this is being done

“for the purpose of giving effect to Council Regulation (EC) No. 1239/98”.

As I have already indicated, there is not the slightest doubt as to the power of the Minister to give effect by statutory instrument to

the principles and policies contained in that measure, even though they have not been embodied in any Act of the Oireachtas: that is

the clear object of S.3 of the 1972 Act. What no Minister can do, in availing of the powers conferred by that section, is to provide for

the creation of an indictable offence: that power was expressly reserved to the Oireachtas by subsection (3). There is no indication

whatever in the language of S.223A that it was envisaged by the Oireachtas that the Minister could give effect to principles and

policies which had never been considered or adopted by the Oireachtas by means of a statutory instrument under that section which

effectively circumvented the prohibition on the creation of indictable offences in S.3 (3) of the 1972 Act.

That conclusion is reinforced when one considers the terms of S.224(B) of the 1959 Act which was inserted in the original act by the

Oireachtas at the same time as S.223A. Had it been the intention of the Oireachtas at that time to empower the Minister by

regulation to give effect on the high seas to measures of the EC and to create an indictable offence in respect of a contravention of

such regulations, it is difficult to understand why they did not avail of the provision which they clearly considered appropriate in the

case of S.224B. The application of the maxim expressio unius exclusio alterius would suggest that such a deliberate omission on the

part of the draftsman is not consistent with an intention to confer those powers on the Minister by virtue of S.223A.

While there was some discussion in the course of the written and oral submissions as to whether the creation of an indictable offence

was “necessitated” by the obligations of our membership of the communities within the meaning of Article 29.4.5 of the Constitution,

having regard to the provisions of Article 31 of the 1993 Council Regulation, it seems to me that that issue does not arise in this case.

Either the 1993 Order was intra vires S.223A of the 1997 or it was not. If it was within the power of the Minister to make such a

regulation for the reasons advanced on his behalf in the High Court and this court, it is not material whether the making of the

regulation in that form was “necessitated” by the obligations of the State as a member of the communities. If, on the other hand, the

order was ultra vires S.223A and could only have been validly made by the Minister under S.3 of the 1972 Act, it follows that it was

of no effect and it is again unnecessary to consider the issue as to whether it was “necessitated” in constitutional terms by our

membership of the communities. For the reasons I have given, I am satisfied that the making of the order was ultra vires S.223A of

the 1959 Act.

That finding is sufficient to dispose of this appeal. I do not think it is necessary, in these circumstances, to come to any conclusion

on the further submission advanced on behalf of the applicant that, in any event, since the 1998 Order did not, as it was contended,

expressly provide for the creation of an indictable offence in respect of contraventions of the 1998 Council Regulation committed

outside the exclusive fishery limits of the State, it should not be construed as creating such an offence.

I would dismiss the appeal and affirm the judgment and order of the High Court.