Supreme Court allows appeal finding Mackerel Licensing Order valid under section 223A of Fisheries Act.

THE SUPREME COURT

Record No. 471/2004

Murray C.J.

Denham J.

Hardiman J.

Fennelly J.

McCracken J.

BETWEEN

THOMAS KENNEDY

Applicant/Respondent

and

THE ATTORNEY GENERAL,

MINISTER FOR THE MARINE AND NATURAL RESOURCES.

Respondents/Appellants

Judgment delivered by Mr Justice Fennelly on 31st day of May, 2005.

1. I regret that I find myself unable to agree with the majority judgment of the Court delivered by Denham J that this appeal should

be dismissed. Nonetheless, I gratefully adopt her comprehensive account of the facts, the history of the proceedings and the legal

issues.

2. The High Court has declared the Mackerel (Licensing) Order, 1999 (“the Order”) to be ultra vires the power invoked by the second-

named Respondent (“the Minister”) in making it. As I understand the conclusion of the majority judgment, it is that the Order was

adopted in implementation of the Common Fisheries Policy (“CFP”) of the European Community, that the legislative scheme found in

the Fisheries Acts as amended contains section 223A, under which the Order was adopted, and an alternative, section 224A. Denham

J states that “it could not have been intended that s.223A would have been used to implement Community law, in light of s.224B.” It

is further explained that:

“If s.223A were considered an appropriate basis for the statutory instrument it would, as pointed out by Keane C.J., in Browne

v. Attorney General, be being used to circumvent s.224B.”

3. In effect, the conclusion is that the Order could only have been adopted under section 223B.

4. The view of the learned High Court judge, O’Caoimh J was centrally based on his analysis of the way in which the Order relates to

the CFP. At the commencement of the deciding part of his judgment, he said:

“At the heart of the instant case lies the issue as to whether measures such as those contained in the impugned Order and in

the conditions applied to the licence of the applicant are measures which arise in the field of Community law in circumstances

where the sole jurisdiction to legislate rests with the organs of the European Communities, or, alternatively, whether the

measure in question falls within an area of competence reserved to the Member States, such as submitted by counsel for the

respondents. It is clear that if the impugned measures are within the realm of community measures as opposed to measures

falling within the competence of the State, that the decision of the Supreme Court in Browne v. Attorney General is

determinative of the issue arising in these proceedings.”

5. As counsel for the Minister has pointed out, it is difficult to discern the precise conclusion the learned trial judge reached on what

he there called “the heart of the …case.” At one point, he stated that: “the provisions of conditions 8 and 9 are such as not to be in

direct application of any Community provision but are measures adopted by the respondent Minister within the limits of his

discretion insofar as they do not compromise the operation of Community law and, in particular, the Common Fisheries Policy.” On

this basis, he might have been expected to have held the Order to be intra vires. However, at a later point, he decided that “the

impugned measures were, in essence, directed to implementing Community policy, albeit within the ambit of the limited discretion

vested in the State under the Council regulations referred to.” He continued: “Accordingly, while the impugned measures have the

appearance of national measures they are, I believe, to be considered as falling within the terms of the Common Fisheries Policy and

not in mere application of national policy.”

6. Apart altogether from whether either conclusion leads to the result that the Order is ultra vires the powers of the Minister, it is

obvious that the interaction between Community and national competence was central to the decision of the High Court.

7. I have come to the conclusion that:

1. The Order falls within the scope of “measures of conservation of fish stocks and measures of rational exploitation of

fisheries,” which defines the scope of the Minister’s power under section 223A;

2. The Order, while adopted within the framework of the CFP, was formulated within the area of discretion allotted under

Community rules to the Member States;

3. The Order could not have been made pursuant to section 223B, as its terms would have had to have be “specified” in a

Community act to comply with the requirements of that section;

4. The decision of the majority of this Court in Browne v Attorney General and others does not determine that no Order can be

made under section 223A, which involves giving effect to the discretionary power of a Member State.

8. I do not believe that there is any real controversy about the first proposition. Nonetheless, it is important to recognise that it was

not part of the Applicant’s case, nor was it determined by the learned trial judge that the measures contained in the order were not

capable of being “measures of conservation of fish stocks and measures of rational exploitation of fisheries.” Apart from the

generality of those words, the section, which is set out in full in the judgment of Denham J, extends to regulating such matters as

sea-fishing, fisheries, fishing boats and provides for the inclusion of “such incidental, supplementary and consequential provisions as

the Minister considers appropriate.” I believe, therefore, that it is not in controversy that the Order could have been adopted under

section 223A, were it not for the existence of section 223B. I will later refer to the affidavit of Mr James Lavelle of the Department of

the Marine and Natural Resources, who explains the purpose of the Order and how it contributes to the statutory objective.

9. The second proposition is the crucial one. In order to address it, it is necessary to recall the relationship between the CFP and the

powers of the Member States. Denham J has summarised many of the relevant provisions of Community law and I do not propose to

repeat them.

10. That fisheries policy has for many years been a matter within the exclusive competence of the European Community is not in

doubt. However, the Member States play an indispensable role in the execution of that policy. As in most areas of Community law and

policy, the Community does not act through its own services. It neither has the resources, nor has it the function of carrying the

policy into effect. Most importantly, of course, the Community has no policing arm and no criminal courts. Therefore, in the manner

set out in some detail in the judgment of Denham J, the execution of Community policy depends almost entirely on the services of the

Member States. Nowhere is this proposition more clearly borne out than in Council Regulation (EEC) No 2847/93 of 12 October 1993

establishing a control system applicable to the common fisheries policy.

11. This regulation, with others, comprises a complex system of control and management of fisheries. Member States are placed, in

many instances, under express obligations. To cite but one example, each Member State is obliged to notify the Commission by

computer transmission before the end of each month of the quantities of fish caught (Article 18). At the same time, and especially in

respect of control, supervision and inspection measures, the Member States are usually required, for example, to “adopt provisions to

verify compliance” (Article 24) and “detailed rules may be adopted…” (Article 26). There are specific instances in the complex of

fisheries regulations where Member States are expressly permitted to adopt their own control and inspection measures. Perhaps most

importantly, the Member States have power to allocate fish quotas among their own fishing fleets. All of this is expressed generally in

Article 4(1):

“The inspection and monitoring specified in Article 2 shall be carried out by each Member State on its own account by means

of a system of inspection decided by each Member State.”

12. The thirty fifth recital to the Regulation clearly delineates the respective responsibilities of the Community and the Member States

by stating that it “does not affect national provisions on monitoring, which, while coming within its scope, go beyond its minimum

provisions, provided that such national provisions are in conformity with Community law.”

13. Counsel for the Minister has, however, submitted that, in allocating responsibility in this way, the Council was reflecting

longstanding jurisprudence of the Court of Justice as expressed in Joined cases 3, 4 and 6/76 Kramer [1976] ECR 1279 at paragraph

52:

“……a Member State does not jeopardise the objectives or the proper functioning of the system established by [the CFP

regulations] if it adopts measures involving a limitation of fishing activities with a view to conserving the resources of the sea.”

14. I do not think it can be correct to go so far. Kramer was decided prior to culmination of the many developments of the 1970’s in

the decision of the Court of Justice in case 804/79 Commission v United Kingdom [1981] E.C.R. 1045. The Court there held that, from

the end of the transitional period for the UK, Ireland and Denmark on 31st December 1978, “the power to adopt …measures relating

to the conservation of the sea has belonged fully and definitively to the Community.” It continued:

“Member states are therefore no longer entitled to exercise any power of their own in the matter of conservation measures in

the waters under their jurisdiction. The adoption of such measures , with the restrictions which they imply as regards fishing

activities , is a matter , as from that date, of Community law. As the Commission has rightly pointed out, the resources to

which the fishermen of the member states have an equal right of access must henceforth be subject to the rules of

Community law.”

15. The Order represents a specific measure adopted by Ireland as a Member State introducing a system of licensing for mackerel

fishing in the context of Community quotas. The applicant is being prosecuted for breaches of two specific provisions of his license.

As explained by Denham J, he has been charged with violating the conditions of the licence by not giving four hours notice to the sea

fisheries office and by landing mackerel at a non–designated port.

16. Mr Lavelle’s affidavit, sworn on behalf of the Minister, fully explains the context and purpose of the Order and how it relates to

the CFP. The purpose of the regulations is to establish a framework for the conservation and protection of resources. The Community

established a regime based on an annual total allowable catch (TAC or quota) for the various species of fish allocated to each

Member State. Such a TAC is allocated to Ireland for mackerel. Most of the Irish mackerel TAC is fished by the dedicated pelagic

segment of the Irish fishing fleet, i.e. those with refrigerated salt-water facilities. Less than ten per cent, 7,000 tonnes in 2001, is

assigned by the State to less well-equipped vessels in the “polyvalent segment,” which fish for all species and to which the

applicant’s vessel belongs. This segment is further divided into vessels under and over 65 feet in length. The applicant’s vessel is more

than 65 feet and is licensed to fish against a quota of 5,500 tonnes.

17. Because the fishing capacity greatly exceeds the available quota, close monitoring is essential if the stock is not to be

irredeemably damaged or even fished out entirely. Ireland is responsible for the management, control and supervision of the

Community system in Irish territorial waters and over Irish vessels in Community waters. Its obligations include inspecting fishing

vessels and investigating all activities, including landing, selling, transporting and storing fish and recording landings and sales.

18. The effect of the Order was to continue in force the licensing regime in relation to mackerel fishing established in 1984, when the

Community introduced a TAC for that species. Mr Lavelle describes the effect of the Order as follows:

“The Mackerel (Licensing) Order, 1999, expressly prohibits all persons from fishing for mackerel in Community waters from an

Irish registered sea fishing boat greater than 55 foot in length, other than pursuant to a mackerel licence granted thereunder.

Landing or transhipping from, or retaining on board, an Irish registered sea-fishing boat greater than 55 foot in length

mackerel taken in Community waters is also prohibited. Prohibitions also apply to the owner, charterer, hirer or the master of

an Irish registered sea-fishing boat greater than 55 foot in length from causing or permitting the boat or any person on board

to fish for mackerel in Community waters, or the landing or transhipment from, or retention on board, the boat, of mackerel

taken in Community waters where no licence has been issued by the second named respondent.”

19. Having explained the function of the Order, Mr Lavelle turned to the purpose of the particular licensing conditions whose alleged

breach led to the applicant’s prosecution.

20. Condition 8, requires the applicant to give four hours notice of his intention to land or tranship mackerel at a port to a sea

fisheries protection officer. This condition represents a consistent policy of having all mackerel landings inspected by sea fisheries

protection officers. The shoaling characteristics of mackerel make it possible for large catches to be made in a short period of time

and no meaningful system of control could be exercised over the mackerel fishery without a system of advance notice of

landing/transhipment being required of licensees. Mr Lavelle makes the same point about condition 9 requiring that the applicant land

mackerel at one of six named ports. He says that it would not be logistically possible to monitor all potential landing points along the

coastline. In any event, these ports were identified in consultation with representatives of the mackerel fishery. It was largely self-

selected as the great bulk of mackerel are, in fact, landed at for of the named ports.

21. He says that this policy of 100% inspection is designed to ensure full compliance by the fishing fleet with the relevant Community

rules and to protect and conserve available and accessible living aquatic resources.

22. The result is that the mackerel licensing regime serves both Community and national interests. Ireland is obliged, in the first

instance, to allocate the TAC among Irish fishing interests. The Community obligation leaves discretion to the Member State regarding

the allocation of quotas and systems of management and supervision. Clearly, the decision to adopt a system of 100% inspection was

made by the Minister in the exercise of his discretion. It was not a requirement of Community law, although Mr Lavelle drew attention

to a similar four hour notice provision where a Community vessel wishes to use a landing location in another Member State: see Article

7(1) of Council Regulation 2847/93 as amended by Article 1(7) of Council Regulation 2846/98. Quite obviously also, Community law did

not require the Minister to limit landing of mackerel catches to six named ports. The combined purpose of the provisions was to ensure

a high level of respect for the quota limits.

23. It follows from all of the foregoing that the Order forms part of the Community scheme for the management of fisheries and the

supervision and enforcement of that system by the Member States, who may exercise discretion as to the means of supervision and

control.

24. At first sight section 223A seems an eminently suitable vehicle for giving effect to the objectives of the Order. It is indisputably a

measure dealing both with the “conservation of fish stocks” and it concerns “the rational exploitation of fisheries.” It relates to a

specified class of sea-fishing and to fishing boats. The section was originally enacted in 1978, but, was amended in 1983, i.e. after

the end of the transitional period and after the decision of the Court of Justice in Commission v United Kingdom. It seems natural and

logical to ascribe to the section the function of giving effect to the CFP, insofar as the Member States are required to manage,

control and supervise fisheries. It could not have meant that Ireland, via ministerial orders adopted under the section was authorised

to enact autonomous conservation measures.

25. However, the learned trial judge felt constrained by the decision of this Court in Browne v Attorney General and others [2003]

I.R. 205 to reach the contrary conclusion. The judgment of the majority of the Court delivered to-day arrives at the same result. The

Minister has argued that Browne is distinguishable.

26. The Order at issue in Browne was the Sea Fisheries (Drift Net) Order 1998. That order expressly recited that it was being adopted

“for the purpose of giving effect to Council Regulation (EC) No. 123/98 of 8th June 1998.” That Council Regulation contained express,

detailed and mandatory rules prohibiting the use and keeping on board fishing vessels of drift nets. What the Order of 1998 did, in

that case, was to incorporate by reference the relevant provisions of the Council Regulation. It is clear from what I have said that

the Order at issue in this case does not implement or give effect to any such express Community requirement. Nor does it declare

that it does so.

27. Keane C.J. delivered the decision of the majority in Browne. In the decisive part of his reasoning (page 220) he pointed out, as

was clearly the case, that the Order of 1998 was intended to give effect to the principles and policies of the Council Regulation.

28. The Chief Justice proceeded to state:

“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)

[1981] 2 E.C.R. 1045, 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 European Communities.”

29. The Chief Justice appears to treat the term, “the high seas” as including Community waters. At a later point the Chief Justice

seems to consider that section 224B is, indeed, capable of justifying measures extending into Community waters and necessarily

beyond national territorial waters.

30. In the crucial later passage of his judgment, the Chief Justice laid some emphasis on the proposition that “[w]hat 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” [section 3(3) of the European Communities Act, 1972.] The Chief Justice did not, however,

arrive at the conclusion that the Order of 1998 offended against this prohibition. In that case, as in this the offence is created by

section 223A(2) as inserted by section 9 of the Fisheries (Amendment) Act, 1978. The indictable offence is created by section 2 of

the same Act. However, the Chief Justice proceeded as follows:

“There is no indication whatever in the language of s. 223A that it was envisaged by the Oireachtas that the second

respondent 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 Act of 1972.

That conclusion is reinforced when one considers the terms of s. 224(B) of the Act of 1959 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

second respondent by regulation to give effect on the high seas to measures of the European Community 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 est

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 second respondent by virtue of s. 223A.”

31. On a first reading, that passage seems heavily influenced by the proposition that an indictable of fence had been created.

However, at the conclusion of his judgment, the Chief Justice made it clear that he was not deciding that issue. Therefore, it seems

to me that what was crucial to this reasoning was that there had been available to the Minister a provision, section 224B, which, in

combination with section 3 of the Act of 1972, expressly allowed for the adoption of measures such as the Order of 1998. On the

principle, expression unius, he concluded that section 223A could not be used, given the existence of an expressly applicable and

more suitable alternative.

32. It seems to me that, so interpreted, Browne is readily distinguishable. The Order of 1998 was explicitly adopted to give effect to

the mandatory drift net prohibitions in the Council Regulation. Not only did it expressly declare that as its purpose, but it did so in a

manner which corresponded precisely with the terms of the Community instrument. That is clearly not so in the present case. As I

have pointed out, there is no Community instrument requiring the State to adopt the rules contained in the Order, and certainly not

those contained in conditions 8 or 9 of the license. I would go further. Section 224B provides:

“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 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.” (Emphasis added)

33. The underlined provision seems to mean that this section could only be used to give effect to Community acts which provided for

the “manner” of the regulation. The Order did not give effect to any such provision.

34. By contrast with the case of the Order of 1998, in adopting the Order at issue in this case, the Minister decided on the manner of

regulation. He was not required to do so by Community law.

35. In my view, therefore, the Order was not ultra vires the power of the Minister under section 223A and I would allow the appeal.

Since this is a minority judgment, it is unnecessary to consider the cross-appeal.