Supreme Court holds Minister ultra vires for creating indictable offence via statutory instrument without Oireachtas authority.

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

No. 139 of 2002

BETWEEN/

VINCENT BROWNE

Applicant/Respondent

and

THE ATTORNEY GENERAL, THE MINISTER FOR MARINE AND NATURAL RESOURCES, IRELAND and

JUDGE JAMES O’CONNOR

Respondents/Appellants

Judgment of Denham J. delivered on the 16th day of July, 2003.

1. Issue

The issue in this case is whether the Minister for Marine and Natural Resources, hereafter referred to as the Minister, has the power

to create the indictable offence purportedly made in the Sea Fisheries (Driftnets) Order, 1998 (S.I. No. 267 of 1998), hereinafter

referred to as the order, or whether the Minister acted in excess of his power. I am satisfied that the Minister had no power under s.

223 A of the Fisheries (Consolidation) Act, 1959, as amended, to create the purported indictable offence.

The issue of the power of the Minister arises in the circumstances of the implementation of the law of the European Union in Ireland.

The issue has arisen as a preliminary matter to a criminal trial.

2. Appeal

This is an appeal against the order of the High Court (Kearns J.) made on the 6th March, 2002 and perfected on the 8th of May,

2002. The Attorney General, the Minister and Ireland (hereinafter referred to collectively as the respondents) have brought this

appeal and they seek to set aside the judgment and order of the High Court and in their place obtain an order refusing the relief

claimed by Vincent Browne, the applicant/respondent (hereinafter referred to as the applicant).

3. Circumstances

The issue arises in the following circumstances. The applicant, who is the Master of an Irish registered fishing boat, the MFV Antonia,

faces charges in the Circuit Criminal Court. On the 15th day of June, 2000 he left Dingle, Co. Kerry, to fish for tuna, for which he had

a permit issued by a Sea Fisheries Office pursuant to the provisions of the Sean Fisheries (Driftnets) Order 1998. He deposed that he

sailed with 2.5 kilometres of driftnet and approximately 4 kilometres of gill net. He deposed that he did not believe the gill net was a

driftnet under the European Regulations. The MFV Antonia travelled some 400 miles from Dingle in a south westerly direction and

ended up fishing on the night of 18th June, 2000 in an area some 190 miles outside of the 200 mile exclusive fishery limit of the State.

The applicant fished for tuna on the 18th, 19th, 20th, 21st, 22nd and 23rd June, 2000. On the 24th June, 2000 his sea fishing boat

was boarded by a boarding party from the Irish naval vessel L.E. Deirdre and his fishing nets were inspected. The two nets were

measured at 2.545 kilometres and 4.554 kilometres. The applicant was cautioned that he was being detained for the offence of

keeping on board, or using for fishing, one or more drift-nets whose individual or total length was more than 2.5 kilometres contrary to

article 11 of the Council Regulation (E.C.) 1239/98 amending Council Regulation (E.C.) 894/97. The applicant indicated that he

understood the cautions. Both the applicant’s boat and the naval boat sailed to Castletownbere arriving on 26th June, 2000. On

arrival the applicant was met by a Garda and two Sea Fisheries Officers of the Department of the Marine. The applicant’s boat was

then detained on suspicion of having committed an offence pursuant to s. 223A of the Fisheries (Consolidation) Act, 1959, as

amended. On application, the District Court in Macroom granted a detention order of 48 hours during which time the fish was off

loaded and sold, the proceeds amounting to £16,900.00 being retained pending the prosecution.

The applicant was arrested and charged with the offences set out in Castletownbere charge sheets 27 and 28 of 2000. Sheet 27

charged that the applicant between the 18th and the 24th June, 2000 being the Master of the Irish registered sea fishing vessel MFV

Antonia did use for fishing one or more driftnets prohibited by Article 11 of Council Regulation (E.C.) No. 894/97 of 29 April 1997 as

amended by Council Regulation (E.C.) No. 1239/98 of 8 June 1998 and contrary to Article 3 of the Sea Fisheries (Driftnets) Order,

1998 (S.I. No. 267 of 1998), contrary to s. 223A of the Fisheries (Consolidation) Act, 1959 as amended by the Fisheries (Amendment)

Acts, 1978, 1983 and 1994. Sheet 28 charged that the applicant did keep on board the sea fishing vessel a driftnet prohibited by

Article 11 of Council Regulation (E.C.) No. 894/97 of the 29 April, 1997 as amended by Council Regulation (E.C.) No. 123/98 of the 8th

June, 1998 and of paragraph 4 of the Sea Fisheries (Driftnets) Order, 1998 (S.I. No. 267 of 1998), contrary to s. 223 of the Fisheries

(Consolidation) Act, 1959, as amended by the Fisheries (Amendment) Acts 1978, 1983 and 1994.

The applicant pleaded not guilty to the charges. On a ‘without prejudice’ basis the applicant waived preliminary examination and

consented to return for trial to the Circuit Court and indicated that he would be seeking judicial review. The matter has been

adjourned by Cork Circuit (Criminal) Court.

The High Court granted leave to apply for judicial review on the 19th December, 2000 on a number of grounds. In his grounding

affidavit the applicant deposed:

“32. I say that I am advised by my legal advisors and believe that the first named respondent herein has not implemented the

European Council Regulations in accordance with the 1972 European Community Act as amended, or in accordance with the

Constitution and that the said Statutory Instrument made by the second named [respondent] was made ultra vires …”

4. The High Court Order

The High Court granted an order of prohibition directed to the first named respondent prohibiting him from prosecuting the applicant in

the Cork Circuit Criminal Court on the charges preferred against him in the said charge sheets. The High Court ordered that the reliefs

set out in paragraphs 6 and 7 of the motion are declared ultra vires. These reliefs are

“6. A declaration that the Sea Fisheries (Driftnet) Order 1998 (S.I. 267 of 1998) is ultra vires the powers of the third named

respondent herein and contrary to the European Communities Act, 1972 as amended and/or contrary to section 5 of the

Fisheries (Amendment) Act, 1983.

7. A declaration that the Sea Fisheries (Driftnet) Order 1998 (S.I. 267 of 1998) is ultra vires the powers of the third named

respondent herein pursuant to section 223A of the Fisheries (Consolidation) Act, 1959 as inserted by section 4 of the Fisheries

(Amendment) Act, 1983 or alternatively the said section is invalid having regard to the provisions of the Constitution and in

particular Article 15 thereof.”

The High Court refused to refer the matter under Article 234 of the Treaty of the European Communities to the Court of Justice of the

European Communities for the purpose of getting declarations. The High Court adjourned the issue of damages.

5. The High Court Judgment

The learned High Court judge held as follows. (a) Unlike the Maher v. Minister for Agriculture, Food and Rural Development [2001] 2

I.R. 139 case, s. 3 of the European Communities Act, 1972 was not availed of for the transposition. Instead the Fisheries

(Consolidation) Act, 1959 was the chosen vehicle. (b) The respondents did not show that the Minister had legal authority by

reference to the wording of the Fisheries Acts to make the order and accordingly must be held to have acted ultra vires as to the

mode of implementation of the EC Regulation. The High Court judge was satisfied that in the Fisheries Acts the Oireachtas was not

intending to delegate to the Minister a power to implement any measure of EU Law from whatever treaty source arising or to delegate

a power creating an alternative but silent EU power of implementation. He held that it could not be said that the Oireachtas had

implicitly authorised a by-pass of existing methods by which the Minister might have properly sought to implement any such European

obligation. He held that it was the clear implication to be drawn from s. 3(3) of the European Communities Act, 1972 that primary

legislation is required where it is intended to create an indictable offence. Further, that the order does not expressly prescribe that an

infringement of Article 11 of the Council Regulation outside the exclusive fishery limits of the State is an offence, in contrast to the

earlier order S.I. 201 of 1994.

6. Grounds of Appeal

The respondents filed the following grounds of appeal and submitted that the learned High Court Judge erred in:

1. Finding that, by making the Sea Fisheries (Driftnets) Order 1998, the second named respondent violated Article 15.2.1 of the

Constitution of Ireland.

2. Finding that, by making the Sea Fisheries (Driftnets) Order 1998, the second named respondent acted ultra vires.

3. Failing to find that Council Regulation (EC) No. 894/97 of April 29th 1997, laying down certain technical measures for the

conservation of fishery resources, as amended by Council Regulation (EC) No. 1239/98 of June 8th 1998, is directly applicable in

the State and, as such, is part of its domestic law.

4. Failing to find that Council Regulation (EC) No. 894/97 of April 29th 1997, laying down certain technical measures for the

conservation of fishery resources, as amended by Council Regulation (EC) No. 1239/98 of June 8th 1998, is an instrument

capable of setting out policies and principles for secondary legislation.

5. Failing to take any account of the fact that the Sea Fisheries (Driftnets) Order 1998 was made for the purpose of giving

effect to Council Regulation (EC) No. 894/97 of April 29th 1997, laying down certain technical measures for the conservation of

fishery resources, as amended by Council Regulation (EC) No. 1239/98 of June 8th 1998.

6. Failing to find that the principles and policies grounding the Sea Fisheries (Driftnets) Order 1998 are contained in Council

Regulation (EC) No. 894/97 of April 29th 1997, laying down certain technical measures for the conservation of fishery resources,

as amended by Council Regulation (EC) No. 1239/98 of June 8th 1998.

7. Finding that the principles and policies grounding the Sea Fisheries (Driftnets) Order 1998 were to be found in the Fisheries

Act 1959-1994.

8. Finding that the adoption of the Sea Fisheries (Driftnets) Order 1998 did not satisfy the principles and policies test for

delegated legislation.

9. Finding that section 223A of the Fisheries Acts 1959-1994 did not give the second named respondent power to make the Sea

Fisheries (Driftnets) Order 1998.

10. Failing to find that section 223A(1) of the Fisheries Acts 1959-1994 expressly permits the second named respondent to

adopt measures for the conservation of fish stocks and measures for the rational exploitation of fisheries.

11. Finding that the second named respondent was required to make the Sea Fisheries (Driftnets) Order 1998 by means other

than an order made under and by virtue of the powers given to him by section 223A of the Fisheries Acts 1959-1994.

12. Notwithstanding the enactment of the Fisheries (Amendment) Act 1978, finding that section 3 of the European Communities

Act 1972 requires the third named respondent to enact primary legislation in order to create an indictable offence.

13. Failing to hold that the Sea Fisheries (Driftnets) Order 1998 was necessitated by the obligations of membership of the

Community insofar as the third named respondent is required to bring proceedings against natural or legal persons responsible

for a failure to respect the provisions of the common fisheries policy that are capable of effectively depriving those persons of

the economic benefit of the infringements or of producing results proportionate to the seriousness of such infringements and

effectively discouraging further such offences.

14. Finding that the Sea Fisheries (Driftnets) Order 1998 did not apply to offences committed on board an Irish registered sea-

fishing boat.

15. Finding that the Sea Fisheries (Driftnets) Order 1998 prohibited acts committed within the territorial seas and/or the

exclusive fishery limits of the State only.

16. Finding that the Sea Fisheries (Driftnets) Order 1998 is an ambiguous provision imposing criminal liability to trial, conviction

and punishment by means of interpretation only.

17. Finding that the Sea Fisheries (Drift-nets) Order 1998 offends Article 15.2.1 of the Constitution of Ireland.

18. Finding that the Sea Fisheries (Driftnets) Order 1998 offends Article 6 of the Constitution of Ireland.

19. Finding that the Sea Fisheries (Driftnets) Order 1998 disapplies or repeals section 4 of the European Communities Act 1972.

When oral submissions were made to the Court it was stated that the ‘necessitated’ by the obligations of membership of the

community argument was not being advanced.

7. Community Law

The European Community has taken conservation measures as part of the common fisheries policy, this includes restrictions on

driftnets. In regulations the Council has expressed jurisdiction over all waters falling within the sovereignty or jurisdiction of Member

States. Outside those waters jurisdiction is expressed over all community fishing boats, even on the High Seas.

7.1. Council Regulation (E.E.C.) No. 2847/93

Council Regulation (E.E.C.) No. 2847/93 of 12 October 1993 established a conservation control system, as part of the common

fisheries policy. In the recitals it provided that to ensure all catches and landings are kept under surveillance member states must

monitor in all maritime waters the activities of community vessels. It was further recited that the absence of dissuasive sanctions in

certain member states reduced the effectiveness of controls, that member states should take all the necessary non-discriminatory

measures to guard against and prosecute irregularities, particularly by establishing a roster of sanctions which effectively deprive the

wrong-doers of the commercial gain resulting from their infringements. It was provided that to ensure compliance with the rules of the

Common Fishery Policy a community system was thereby established including provision for conservation and resource management.

Article 1.3 provided that the system shall apply to all fishing activities carried out in the maritime waters of the member states. It

provided also that it shall apply to the activity of community fishing vessels which operate in the waters of non-member countries and

on the high seas. Article 2.3 provides that each member state shall monitor outside the community fishing zone the activities of its

vessels and cases where such control is required to ensure compliance with community rules applicable in those waters. Title VIII

relates to measures to be taken in the case of non-compliance.

Article 31 provides:

“1. Member States shall ensure that the appropriate measures be taken, including of 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:

- fines,

- seizure of prohibited fishing gear and catches,

- sequestration of the vessel,

- temporary immobilisation of the vessel,

- suspension of the licence,

- withdrawal of the licence.”

For the purpose of this case, it is noteworthy that there is no reference to an indictable offence. While this is understandable in the

context of EU Law it is an important factor when considering the Irish law and Constitution.

As to an infringement, Article 32 states:

“1. Where an infringement of the provisions of this Regulation is discovered by the competent authorities of the Member State

of landing or transhipment, those competent authorities shall take appropriate action in accordance with Article 31 against the

master of the vessel involved or against any other person responsible for the infringement.”

Thus the “appropriate action” is to be considered to be in accordance with Article 31.

7.2. Council Regulation (E.C.) No. 894/97

Council Regulation (E.C.) No. 894/97 of 29 April 1997 codified certain technical measures for the conservation of fishery resources by,

amongst other measures, specifying mesh sizes of fishing nets as well as establishing limitations on fishing in certain areas. Reference

was made to U.N. Resolution 44/225, and to the U.N. Convention on the Law of the Sea which requires all Members of the

International Community to cooperate in the conservation and management of the living resources of the sea, reciting that it was

desirable to regulate fishing with driftnets. The regulation applied to the taking and landing of fishery resources occurring in all

maritime waters under the sovereignty or jurisdiction of the member states except as provided in Article 6 (1) (b), Article 10 (17) and

Article 11 (3).

7.3. Council Regulation (E.C.) No. 1239/98

The Common Fishery Policy was further developed in Council Regulation (E.C.) No. 1239/98 of 8 June, 1998, which amended

Regulation (E.C.) No. 894/97. Reference was made to Council Regulation (E.E.C.) No. 3760/92 of 20 December 1992 establishing a

community system for fisheries and aquaculture and to requiring the Council to establish conservation measures necessary to ensure

rational and responsible exploitation of living marine resources, for which purposes the Council may adopt technical measures

regarding fishing gear. Referring to Regulation (E.C.) No. 894/97 which regulated fishing with driftnets, the rapid increase in their use

and that uncontrolled expansion could present grave risk of excessive increase in fishing, in accordance with the communities

international obligations to contribute towards the conservation and management of the biological resources of the oceans, it was

recited that it was necessary to regulate strictly any expansion of driftnet fishing by community vessels, and it was recited that

restrictions on the length of driftnets are required, Article 11 of Regulation (E.C.) No. 894/97 was replace by the following:

“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 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.

…

3. Until 31 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 to 1997.

…

Article 11c

With the exception of waters covered by Council Regulation (E.C.) No. 88/98 of 18 December 1997 laying down certain

technical measures for the conservation of fishery resources in the waters of the Baltic Sea, the Belts and the Sound and

notwithstanding Article 1(1), Articles 11, 11a and 11b shall apply in all waters falling within the sovereignty of jurisdiction of the

Member States and, outside those waters shall apply to all Community fishing vessels.

It was provided in Article 11 (b):

“6. In the case of failure to comply with the obligations laid down in Article 11 and 11a and this Article, the competent

authorities shall take appropriate measures in respect of the vessels concerned, in accordance with Article 31 of the Regulation

(E.E.C.) No. 2847/93.”

The regulation further provided in Article 2:

“It shall apply from 1 July 1998.

This regulation shall be binding in its entirety and directly applicable in all Member States.”

8. Irish Legislation

8.1. The Parent Act

The Parent Act, the legislative base submitted by the respondents for the delegated legislation, is the Fisheries (Consolidation) Act,

1959, as amended. In this Act principles and policies were laid down by the legislature as to fishing. It is a comprehensive

consolidating Act. I shall consider it first as of 1959, which was long before Ireland joined the European Community or the Common

Fisheries Policy was established, and then shall refer to the current relevant, amended sections.

The Fisheries (Consolidation) Act, 1959 is, as the long title described, an act to consolidate the Fisheries Acts 1842 to 1958 and

certain other enactments relating to fisheries. It was a long Act, 335 sections and 6 schedules. Part I is preliminary and general. It

has an extensive definitions section. Part II sets out miscellaneous powers and duties of the Minister. It relates to tidal waters. Under

s. 9 the Minster may make byelaws, including those for relevant nets, defining the boundary of the mouth of a river. The Minister was

given authority to grant special local licences and fish culture licences. Part III of the Act of 1959 set up fishing districts and electoral

divisions. For example, district number 1, Dublin district, comprises (a) the whole of the sea and the tideway along the coast between

the following points, vis., the most easterly point on Red Island, Skerries, County Dublin and Wicklow Head, County Wicklow and

around any islands or rocks off the coast between the said points, and (b) the whole of the several rivers, lakes and their tributaries

flowing into the tideway between the said points, and the land drained thereby. Part IV makes provision for boards of conservators for

the fishing districts. Pursuant to Part V, every board of conservators had each year to strike on all fisheries within its district a rate

sufficient to meet the estimated expenditure of the board for that District for that year. Part VI established laws as to licences for

fishing for salmon, trout and eel, licences for fishing in special tidal waters and licences for fishing for trout with rod and line in certain

waters. Part VI made regulations as to nets. Specific regulations were made as to nets for salmon on any part of the coast or within

any bay, estuary or tideway, or at the mouths of rivers. Part VIII makes provisions in relation to fixed engines, fishing weirs, fishing

mill dams and other obstructions to the passage of fish. Part IX sets out restrictions as to times of fishing for salmon, trout, pollen

and eels and ancillary provisions. Part X provides for the provision of a salmon dealers licence and salmon exporters licence. A variety

of miscellaneous matters, including prohibitions on certain methods of fishing for salmon, protection of fishing waters from poisoning

and pollution, protection of young and breeding fish, protection of private fisheries, are set out in Part XI. Part XII provides for the

transfer to the Minister of certain tidal waters, weir and mill dam fisheries, amongst other matters.

Part XIII makes provision for sea fisheries, which is relevant to this case. There are a number of definitions, relating to expressions

such as ‘the exclusive fishery limits of the State’, ‘fishing gear’, ‘foreign sea fishing boat’, ‘Irish sea fishing boat’, ‘master’, ‘net’, ‘sea

fish.’ Chapter 2 of this part contains provisions relevant to exclusive fishing limits of the sea; it prohibits any foreign sea fishing boat

to enter within the exclusive fishery limits of the State, with a few exceptions. Breach of s. 221 (1) created an offence. Section 223

of the Act originally provided in 1959:

“(1) The Minister may from time to time by bye-law prohibit (at the option of the Minister either, as may be specified in such

bye-law, absolutely or unless such conditions as the Minister thinks fit to insert in such bye-law are complied with) the use,

within the waters of any specified area (being an area within the exclusive fishery limits of the State), in or from either, as

may be specified in such bye-law, any boat or any boat of a specified class, of any method of trawling or seining (including

fishing by means of any kind of net hauled along the bottom of the sea whether by a moving boat or by any mechanical

appliance in an anchored boat), and different bye-laws may be made in respect of any different classes of boats and different

methods of fishing” (the emphasis has been added).

A summary offence was established for breach of any bye-law made under s. 223. This section has been repealed and amended.

Originally s. 224 provided that if any sea fishing boat to which Part IV of the Merchant Shipping Act, 1894 applies is found within the

exclusive fishing limits of the State without having on board the official papers issued in pursuance of the Act in respect of such boat,

or any other boat was found within the exclusive fishing limits of the State without having on board official papers evidencing the

nationality of such boat, the master of such boat shall be guilty of an offence.

Chapter III of this part contains provisions relating to under sized sea fish. The Minister was given authority to declare any specific

kind of sea fish under sized.

Section 226 made restrictions as to nets on sea fishing boats. It provided:

“(1) The Minister may, whenever and so often as he thinks fit, by order declare it to be unlawful to carry, on board any Irish

sea-fishing boat in a specified area or on board any other sea-fishing boat in so much (if any) of that area as is within the

exclusive fishery limits of the State, any net for sea-fishing which is not constructed in such manner and has not a mesh of at

least such size as may be specified in such order.”

Further, s. 227 made it an offence to carry on board any Irish sea fishing boat anywhere or on board any other sea fishing boat within

the exclusive fishing limits of the State, any device by means of which the mesh of any part of a net then carried on such boat could

be obstructed or otherwise in effect diminished. Also, s. 228 made it an offence to have in possession for the purpose of sale, on

board any Irish sea-fishing boat anywhere or on board any other sea fishing boat within the exclusive fishing limits of the State, any

under sized sea fish. The Minister may by order revoke or amend any order made under this chapter of the Act. Every order made by

the Minister shall be published in Iris Oifiguil specifying the date when it comes into force. Section 231 gives every sea fishery

protection officer powers of inspection, examination and detention of sea fish and nets, and the right to demand the name and

address of specified persons. Chapter 5 of this part introduced provisions relating to the dredging of shell fish by canvas, hide or other

material by which under sized fish may be taken or destroyed. Section 238 prohibited the setting in the sea or in the tideway of any

estuary any net for the catching of herrings or any trammel net or any drag net or other net in the water. Part XIV relates to oysters.

Many provisions in this section relate to the conservation and protection of oysters and oysters beds. Part XV deals with molluscs,

other than oysters. Here also there are provisions relating to conservation of molluscs (other than oysters). Part XVI relates to crabs,

once again there are conservation provisions. Part XVII contains penalties for miscellaneous offences. Part XVIII provides powers for

water keepers, officers and servants of boards of conservators, Garda Siochana and other persons for the enforcement of the Act.

Part XIX contains provisions relating to legal proceedings, fines, forfeitures, enquiries and service of documents. Part XX contains

miscellaneous provisions. The first schedule to the Act sets out the enactments repealed, from the Fisheries (Amendment) Act, 1842

to the Amendment Act of 1958. The second schedule sets out the fishery districts, electoral divisions and number of conservators of

each electoral division. The third schedule makes provision for the accounts of boards of conservators. The fourth schedule sets out

the duties (cost) of licences. The fifth schedule relates to bye-laws fixing close seasons for molluscs (other than oysters). The sixth

schedule sets out the form of appointment of water keepers under s. 294.

Clearly this Consolidation Act was and is wide ranging. This Parent Act contains clear principles and policies relating to sea fishing.

They include principles and policies relating to conservation and rationalisation of fishing. Specifically, policy on nets and undersized

fish is clearly stated. Further, Part XIII plainly makes provision for fishing boats in the Irish exclusive fishing zone and for Irish boats

outside that zone. This Act has been amended many times since 1959.

I have considered the Parent Act as of 1959 in some detail because it shows that in 1959 the legislature set down clear principles and

policies in legislation relating to sea fishing, including conservation and rationalisation. Since then the Act has been amended many

times and some of the amendments are relevant to the issue before the Court. This Act has been amended by the legislature since

Ireland joined the European Community and the Common Fisheries Policy and these changed circumstances are reflected in the

amendments.

8.2. Section 223

Section 223A(1) of the Parent Act as inserted by s. 9 of the Fisheries (Amendment) Act, 1978, as amended by s. 4 of the Fisheries

(Amendment) Act, 1983 is the legislative base submitted by the respondents for the delegated legislation. Section 4 of the Fisheries

Amendment Act, 1983 provides:

“4.-(1) Chapter II of Part XIII of the Principal Act is hereby amended by the substitution of the following subsections for

subsection (1) of section 223A (inserted by section 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 purposes 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 section 301 of this Act,

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

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

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

(2) An order under subsection (1) of section 223A (inserted by section 9 of the Act of 1978) of the Principal Act and which

immediately before the commencement of this section had neither expired nor been revoked shall be deemed to have been made

under the first of the subsections inserted in the said section 223A by subsection (1) of this section and may be revoked or

amended as if it had been so made.

8.3. Section 224B

Section 224B, as inserted by s. 10 of the Fisheries (Amendment) Act, 1978, as amended by s. 5 of the Fisheries (Amendment) Act,

1983, empowers the Minister to make regulations to give effect to community law within the exclusive fishery limits of the State.

Section 5 of the Fisheries (Amendment) Act, 1983 provides:

“5.-Chapter II of Part XIII of the Principal Act is hereby amended by the insertion of the following section after section 224A

(inserted by section 10 of the Act of 1978):

‘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.”

8.4. European Communities Act, 1972

Under s. 2 of the European Communities Act, 1972 from the 1st day of January, 1973, the treaties governing the European

Communities and the existing and future acts adopted by the institutions of the Communities shall be binding on the State and shall

be part of the domestic law. Section 3 of that Act provides:

“(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.

…”

However, the delegated legislation in issue in this case was not made under the European Communities Act, 1972. It was not the

method of implementation chosen by the Minister.

9. The Delegated Legislation, the Order

The delegated legislation in issue is the Sea Fisheries (Driftnets) Order, 1998 (S.I. No. 267 of 1998), referred to as the order. In this

order the Minister, stating that it was in exercise of the powers conferred on him by s. 223A (inserted by s. 9 of the Fisheries

(Amendment) Act, 1978, amended by s. 4 of the Fisheries (Amendment) Act, 1983) of the Fisheries (Consolidation) Act, 1959, inter

alia, for the purpose of giving effect to Council Regulation (E.C.) No. 874/97 of 29 April 1997 as amended by Council Regulation (E.C.)

No. 1239/98 of 8th June, ordered:

“…

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.

(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 driftnets 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 driftnets 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 …

5.(1) The holder of an authorisation granted for the purposes of Article 11a (3) of the Council Regulation by the competent

authority of the flag Member State of the European Community (other than the State) may, in the exclusive fishery limits of the

State, keep on board the foreign sea-fishing boat to which the authorisation relates, or use for fishing from the boat, one or

more driftnets 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

driftnets 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.

6.(1) The Minister may, until the 31st day of December, 2001, upon the application of any person who is the owner, charterer

or hirer of an Irish sea-fishing boat and upon being furnished by the person with any information which the Minister may

reasonably require in relation to the application, grant to the person an authorisation (for the purposes of Article 11a (3) of the

Council Regulation) authorising the use from the boat of one or more driftnets, whose individual or total length is not more than

2.5 kilometres, for the capture of species listed in the Annex during such period as may be specified in the authorisation.

(2) An authorisation under this Article shall stand revoked if the holder of the authorisation ceases to be the owner, charterer

or hirer of the boat to which the authorisation relates or does not or ceases to hold a licence granted under section 222B

(inserted by section 2 of the Fisheries (Amendment) Act, 1983) of the Fisheries (Consolidation) Act, 1959.

(3) An authorisation under this Article shall be subject to -

(a) the conditions specified in Article 11b of the Council Regulation and specified in the authorisation, and

(b) any or all of the following conditions (if any) as the Minister thinks fit and specifies in the authorisation –

(i) restricting the quantity of species listed in the Annex that may be taken, landed or transhipped in a specified

period or periods.

(ii) prohibiting the landing or transhipment of species listed in the Annex other than at specified places,

(iii) requiring the master of the boat concerned to keep specified records, in addition to those required by Article

11b (3) of the Council Regulation in relation to the activities of the boat,

(iv) requiring the master of the boat concerned at all times on a request being made in that behalf to permit the

boarding and inspection of the boat and inspection of the authorisation and any records kept on board the boat in

relation to the boat, whether pursuant to a requirement of the authorisation or otherwise, by a sea fisheries

protection officer and the taking of copies of the authorisation or any such records by such an officer.

(v) requiring the keeping of the authorisation on the boat concerned, or

(vi) requiring the surrender of the authorisation by the holder to the Minister or a sea fisheries protection officer

upon its expiry or revocation.

(4) The Minister may, if he or she is satisfied that there has been a failure to comply with the condition specified in an

authorisation under this Article, revoke the authorisation.

(5) Where an application for an authorisation under this Article is made by a person who has previously held an

authorisation that was revoked under this Article by the Minister, the Minster may, if he or she so thinks fit refuse to

grant the authorisation to which the application relates.

(6) The Minister may at any time revoke or vary any condition, or insert a new condition, under paragraph (3) (b) of this

Article, and the condition as so revoked, varied or inserted shall be regarded as being specified in the authorisation.

(7) Neither a person to whom an authorisation is granted under this Article nor the master of an Irish sea-fishing boat to

which such an authorisation relates shall fail to comply with the conditions specified in the authorisation or cause or

permit such a failure.

(7) The following are hereby revoked …”

10. Decision

10.1. Decision: Common Fisheries Policy

Article 3 E of the E.C. Treaty provides that the community’s activities shall include a common policy in the sphere of agriculture and

fisheries. Article 10 imposes an obligation on members States to take all appropriate measures to ensure fulfilment of the obligations

arising out of the Treaty or resulting from action taken by the institutions and to abstain from any measure which might jeopardise

the attainment of the Treaties. The community institutions exercise exclusive powers over the common fisheries policy. Since January

1st, 1979 the power to adopt measures relating to conservation of the resources of the sea belongs to the community. Member

States no longer exercise national power in relation to conservation measures in their jurisdictional waters. The adoption of

conservation measures is a matter of community law. S. 223A (1) of the Fisheries Acts expressly relates to conservation measures.

As the conservation measures since 1979 are those of the common fisheries policy the section must be construed accordingly.

10.2. Decision: European Community Act, 1992

The Minister did not use s. 3 (1) of the European Communities Act, 1972 to implement the Council Regulation in issue. S. 3 (1) of that

Act is a primary mode for implementing regulations of the community. In such transposition the principles and policies may be found in

a Council Regulation or Regulations: Meagher v. Minister for Agriculture [1994] 1 I.R. 329, Maher v. Minister for Agriculture, Food and

Rural Development [2001] 2 I.R. 139. However, if this method of implementing Council Regulations is used then the Minister may not

by order create an indictable offence: European Communities Act, 1972, s. 3 (3). This is a clear policy and principle stated by the

Oireachtas. Whereas significant powers are given to a Minister of State to make regulations for enabling the implementation of

community law this power, to create an indictable offence, was retained by the legislature.

10.3. Decision: Section 224

S. 224 of the Fisheries (Consolidation) Act, 1959 provided for certain offences of sea fishing boats within the exclusive fishery limits

of the State, such as not having on board official papers, lights, etc. S. 224A was inserted by s. 10 of the Fisheries (Amendment)

Act, 1978. It provided that ‘without prejudice to the provision of any other enactment’ the Minister may make Regulations for the

purpose of carrying out the Convention on the Conduct of Fishing Operations in the North Atlantic made at London on the 17th day of

March, 1967, or any convention amending or replacing that convention. S. 224A (2) provided that a person who contravened a

Regulation under this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding £500. Here we see

a clear provision made in a Statute by the Oireachtas, providing that the Minister may make Regulations, without prejudice to the

provision of any other enactment. A summary procedure is envisaged.

Section 5 of the Fisheries (Amendment) Act, 1983 inserted a new s. 224B to empower the Minister to make Regulations to give effect

to matters relating to the European Communities. Section 5 provides:

5. Chapter II of Part XIII of the Principal Act is hereby amended by the insertion of the following section after section 224A

(inserted by section 10 of the Act of 1978):

‘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.”

This is a specific power given to the Minister, expressly stated to be without prejudice to the generality of s. 3 (1) of the Act of

1972, to make regulations and to give effect within the exclusive fishery limits of the State, to any provision of either the treaties or

any act adopted by an institution of the European Communities to restrict or regulate fishing in waters of the community. S. 224B (2)

mirrors s. 3 (2) of the Act of 1972. Provision is made in sub-section 3 expressly for an indictable crime. Thus, here the legislature

expressly created machinery and gave power to the Minister to implement community law by regulation and to create an indictable

offence. However, as the power relates only to the exclusive fishery limits of the community it could not be utilised to create an

offence on the High Seas, and so could not be the basis for the Minister to implement the Council Regulation in this case.

10.4 Maritime Jurisdiction Act, 1959

Section 7 of the Maritime Jurisdiction Act, 1959 enabled the Government, having regard to any international agreement to which the

State is a party, where it is satisfied that it is necessary to maintain the resources of the sea, by order prescribe and adopt such

measure of conservation as they think proper in relation to any stock of fish or other marine resources in any area (a fishery

conservation area) of the High Seas adjacent to the exclusive fishery limits. A person who contravenes any provision of any such

order shall be guilty of an offence and shall on summary conviction be liable to the penalties provided by s. 223 of the Fisheries

(Consolidation) Act, 1959, for an offence under that section.

In this Act the legislature enacted principles and policies relating to conservation on the High Seas and created appropriate offences.

The statute is prior to Ireland’s accession to the European Community and the Common Fisheries Policy. Thus the legislature even

then provided for extra territorial offences relating to conservation, such offences to be established by order, the offence to be

summary.

10.5. Decision: Section 223

The mode of implementation chosen by the Minister for the order in issue was s. 223A of the Fisheries (Consolidation) Act, 1959

(inserted by s. 9 of the Fisheries (Amendment) Act, 1978, amended by s. 4 of the Fisheries (Amendment) Act, 1983) stated to be for

the purpose of giving effect to the Council Regulation (E.C.) No. 894/97 of 29 April, 1997 as amended by Council Regulation (E.C.) No.

1239/98 of 8 June, 1998.

The issue for determination is whether the Minister could create an indictable offence by this order or whether he acted ultra vires in

so doing. When Ireland joined the European Community the constitution and laws were amended accordingly. Whereas the basic

democratic structure of separated powers of government, into executive, judicial and legislative organs, continued in place, in

addition new law making powers in the European Community were included in the constitution and the law as part of the shared

sovereignty within the European Community. Thus, the Oireachtas was no longer the sole law making authority. However, an

important principle of the Community is that the method of implementing Regulations of the Community is a matter for the Member

States. On Ireland joining the Community the primary provision for the implementing of Community Law into Ireland was stated to be

the European Communities Act, 1972. The principles and policies of the legislature as to the mode of implementation of Community

Law are set out clearly in that Act. The Oireachtas in plain and simple language gave to the Ministers of State authority to make

regulations enabling s. 2 to have full effect. Further, the legislature (s. 3 (2)) stated the clear principle that such regulations may

contain such incidental, supplementary and consequential provisions as appear to the Minister making regulations to be necessary for

the purpose of the regulations (including provisions repealing, amending or applying with or without modification, other law, exclusive

of the Act). This is a clear policy. A concern has been expressed of a perceived democratic deficit, that in the arrangements for the

implementation of community law in Ireland the legislature has little if any role. This issue has been referred to in previous cases. It is

an important part of the fabric of the Constitution of Ireland that the legislature is the law making body in the State. While authority

has been given by the State to the community to make law the implementation of such law should be in conformity with the law and

the principles of the Constitution. The European Community has also recognised the importance of national public law and leaves it to

the State to implement regulations. The result is that when there are clear principles established by the national legislature as to the

mode of implementing the law of the European Community such must be applied and inferences may be drawn from both the

Constitution and legislation as to the implementation of Regulations.

Thus, the primary legislative provision for implementing Community Regulations, the European Communities Act, 1972, specifically

states a principle and policy that regulations made by the Minister enabling the implementation of community law shall not create an

indictable offence. It is an important principle of the legislation, it limits the power of the Minister, and the legislature is retaining to

itself the power to create indictable offences. Such a principle recognises the significance of indictable offences and that they should

be established by the Irish Parliament. This recognition by a member state of its parliament is entirely consistent with Community Law:

the method of implementation is for the member state. In such a situation a balance is achieved: the importance of major institutions

in the State and in the Community receive appropriate recognition.

Of course the European Communities Act, 1972 is not the only statute setting out procedures empowering a Minister of State to make

regulations for implementing Community Law. While it is the primary such statute the Oireachtas may and has legislated in other

statutes for modes of implementation. The legislature is not barred from revisiting the issue.

10.6 Decision: Can the Minister make the order

In view of the special role of the Oireachtas as the law making body under the Constitution, and in view of the expressed policy on

the creation of indictable offences in s. 3 (3) of the Act of 1972, any statute purporting to give power to a Minister to create an

indictable offence should set out such power in plain and clear language. There should be no ambiguity. In this case the Fishing

(Consolidation) Act, 1959 as amended does not express in clear and plain language that the Minister has power to create an

indictable offence, in implementing Community Law, on the High Seas. Consequently, I am satisfied that he does not have such

authority and that in making the order he acted ultra vires. That decision is sufficient to determine the case.

11. Opinion: Role of Fishing (Consolidation) Acts 1959 as amended

In 1959 when the Fisheries (Consolidation) Act, 1959 was passed by the Oireachtas Ireland was not a member of the European

Community. In the 1959 Act there was a consolidation of Acts relating to fishing, including sea fishing. Principles and policies as to

conservation and rational fishing of fish stocks in Irish waters and on the High Seas were matters addressed in this Act and in its later

amendments.

On Ireland joining the European Community and then on the development of the Common Fishery Policy the making of policies on

fishing, including conservation, moved to the Community Institutions. Such principles and policies were no longer determined by the

Irish Government or Parliament.

However, Irish legislation continued to address the issues in Fishery Amendment Acts and orders, conservation and driftnets being

matters dealt with in more than one order. The principles and policies of international agreements were regulated in Community Law

and then came to be implemented in Ireland.

The Irish Fisheries Acts are a complex scheme of legislation. The legislation continues while the principles and policies of sea fishing

are made by the European Community. Where the community makes the Common Fisheries Policy there is no role for the Oireachtas in

making the principles and policies, unless it is so given by the common policy. The Oireachtas is in the same position as described in

Meagher v. Minister for Agriculture [1994] 1 I.R. 329 where I stated at page 367:

“In the directives herein the policies and principles have been determined. Thus there is no role of determining policies or

principles for the Oireachtas. While the directive must be implemented there is no policy or principle which can be altered by the

Oireachtas, it is already binding as to the result to be achieved. That being the case the role of the Oireachtas in such a

situation would be sterile. To require the Oireachtas to legislate would be artificial. It would be able solely to have a debate as

to what has already been decided, which debate would act as a source of information. Such a sterile debate would take up Dail

and Seanad time and act only as a window on the Community directives for the members of the Oireachtas and the Nation.

That is not a role envisaged for the Oireachtas in the Constitution.”

The principles and policies as to sea fisheries are made now in the Community, in the Common Fisheries Policy. Where the legislature

legislates for matters in such policy, both expressly and by implication, the legislature is implementing the Common Fisheries Policy.

The Minister is in somewhat the same position as the Minister for Agriculture who implements the Common Agricultural Policy. Here too

the policy making is in the Community. There is no policy decision making in Ireland after the principles and policies of the Common

Fisheries Policy have been decided in the Community, unless returned to the member states.

In Maher v. Minister for Agriculture [2001] 2 I.R. 139 at page 222 I stated:

“This case is not about any democratic deficit in Ireland. If there is a democratic deficit it should be met prior to the making of

the Community regulations. If any such deficit exists it cannot be addressed after the policies and principles have been

established by the Community regulations. This is not a case of executive usurping the role of the legislature. Once principles

and policies have been established by Community regulations there is no role, certainly no meaningful role, for the national

legislature.

The democratic system in Ireland functions through three branches of government. However, in addition, the State is subject to

European institutions and provisions made therein. These regulations are directly applicable. These regulations are part of Irish

laws as a consequence of Ireland’s membership of the European Union. They are part of Irish law without any input from the

three branches of government.

The principles and policies in relation to the milk quota were set down in the European provisions. These regulations are directly

applicable in Ireland. They set out the principles and policies of the milk quota system. This scheme is a creation of the

European Union and an important part of the Common Agriculture Policy and the Common Organisation of the Market. It is

quintessentially a market device run from central institutions.

There is no necessity for legislation in the Oireachtas as the principles and policies are established in the Regulations. Indeed,

such an enactment might have caused an impediment of the common organisation of the market if it had strayed from the

principles and policies in the regulations. Also, such an approach might have created the illusion that there were policies to be

decided in the national parliament when in fact they were not. There was no renvoi to the national legislature.”

The principle and policies as to conservation of fish stocks and measures of rational exploitation of fisheries may be found in the

Common Fisheries Policy, which may be stated in the Community Regulations. It is then a matter of implementing these policies in the

member states.

12. Offence/Penalty

The offence in issue is created in Community law which gives Member States some choice as to the penalty. The penalty created in

Ireland should meet the requirements of the Community Regulations. However, the choice while remaining within the principles and

policies of the Community law is required to be implemented in Ireland. In enabling that choice the Minister is required to comply with

Irish public law, which includes the European Communities Act, 1972 s. 3 and the Constitution. I am satisfied that the Minister did not

comply with Irish law.

13. Conclusion

For the reasons stated in this judgment I am satisfied that it was not open to the Minister to use the mechanism of s. 223A of the

Fisheries (Consolidation) Act, 1959 (inserted by s. 9 of the Fisheries (Amendment) Act, 1978, amended by s. 4 of the Fisheries

(Amendment) Act, 1983) to create an indictable offence by means of statutory instrument as a method of giving effect to Council

Regulation (E.C.) No. 894/97 of 29 April 1997 as amended by Council Regulation (E.C.) No. 1239/98 of 8 June 1998.

For the reasons given I would dismiss the appeal and affirm the order of the High Court granting an order of prohibition directed to the

first named respondent herein prohibiting him from prosecuting the applicant in the Cork Circuit Criminal Court on the charges preferred

by him and contained in Castletownbere charge sheets No. 27 and No. 28 of 2000.

Absent clear words from the Oireachtas in s. 223A of the Fisheries (Consolidation) Act, 1959, as amended, giving such power to the

Minister I am satisfied that the Minister acted ultra vires in creating an indictable offence in purported exercise of his powers under

that section. Of course it is open to the Oireachtas to legislate for exceptions or amendments to its policy as set out in s. 3 (3)

European Communities Act, 1972, as amended.