Supreme Court dismisses appeals against High Court refusal to quash regulations under the 1993 Act.

THE SUPREME COURT

[S.C. No. 387 of 2005]

[S.C. No. 388 of 2005]

[S.C. No. 389 of 2005]

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Macken J.

Between/

Seamus Quinn

Applicant/Appellant

and

Ireland, the Attorney General, and the

Minister for Agriculture, Food and Rural Development

Respondents

Between/

Darragh Quinn

Applicant/Appellant

And Ireland, the Attorney General, and the

Minister for Agriculture, Food and Rural Development

Respondents

Between/

Neil Tector

Applicant/Appellant

and

Ireland, the Attorney General and the

Minister for Agriculture, Food and Rural Development

Respondents

Judgment delivered on the 28th day of November, 2006 by Denham J.

1. Seamus Quinn, Darragh Quinn and Neil Tector, the applicants/appellants, hereinafter referred to as 'the applicants', have

brought this appeal from the order of the High Court (Abbott J.) made on the 11th October, 2005 and perfected on 28th

October, 2005, in which the applicants' application by way of judicial review for declarations and an order of prohibition

was refused.

2. The applicants brought separate proceedings seeking the same relief on the same grounds. Each of the applicants is

alleged to have contravened various provisions of the Animal Remedies Regulations, 1996 ("the 1996 Regulations") as

amended by the Control of Animal Remedies and their Residues Regulations, 1998 ("the 1998 Regulations") and the Animal

Remedies (Amendment) Regulations, 2002 ("the 2002 Regulations") and/or provisions of the 1998 Regulations as amended

by the 2002 Regulations.

The first named applicant, Seamus Quinn, was served with 61 summonses in total reciting contraventions of regulation 4 of

the 1996 Regulations, contraventions of regulation 6 of the 1996 Regulations and contraventions of regulation 3 (5) of the

1998 Regulations.

The second named applicant, Darragh Quinn, was served with 47 summonses alleging contraventions of regulation 4 and

regulation 26 and regulation 33(2) of the 1996 Regulations, and contraventions of regulation 6 of the 1996 Regulations, and

contraventions of regulation 3(5) of the 1998 Regulations.

The third named applicant, Neil Tector, was served with two summonses alleging contraventions of regulation 21(1) of the

1998 Regulations.

In each summons it is alleged that, in contravening a particular provision of the 1996 or 1998 Regulations, the applicant has

committed an offence pursuant to s. 20 of the Animal Remedies Act 1993 ("the Act of 1993") and that this offence is

punishable under s. 23 of the Act of 1993.

The applicants are seeking declarations that the 1996 Regulations, the 1998 Regulations and the 2002 Regulations are ultra

vires the provisions of section 3(2) of the European Communities Act, 1972 ("the Act of 1972") and a declaration that

regulation 21(1) of the 1998 Regulations contravened section 4(1) of the Act of 1972.

3. The learned High Court judge delivered a reserved judgment in this matter, from which the applicants have filed a notice

of appeal on the following grounds:

"(a) That the learned Trial Judge erred in law in failing to include section 28 of the Animal Remedies Act,

1993 under the heading 'relevant legislation' set out at pages 4 to 8 of the unapproved judgment. Section 28

of the Animal Remedies Act, 1993 provides for annulment procedures for every regulation made under the

Act and yet the learned Trial Judge under that part of his judgment under the heading 'The Effect of

Annulment Procedures' at page 21 of the unapproved judgment, found that the regulations in issue were

regulations made under the Animal Remedies Act, 1993 but that the annulment procedures in s. 28 of the

said Act did not apply to them.

(b) That the learned Trial Judge erred in law in failing to include s. 4(1)(b) and 4(2)(a)(b) and (c) of

the European Communities Act, 1972, as amended, under the heading 'relevant legislation' set out at

pages 4 to 8 of the unapproved judgment. Section 4(1)(b) and 4(2)(a)(b) and (c) of the European

Communities Act, 1972, as amended, sets out the relevant annulment procedures for the regulations

in issue but the learned Trial Judge under the heading 'The Effect of Annulment Procedures' at page

21 of the unapproved judgment, found that clearly under the Act of 1993 there are two annulment

procedures involving the Oireachtas in respect of regulations made under the Act.

(c) That the learned Trial Judge erred in law in concluding under the heading 'Status of Regulations

made under the European Communities Act, 1972, as amended', at page 17 of the unapproved

judgment, that there is an entirely separate constitutional and legislative status of two types of

provisions each having statutory effect.

(d) That the learned Trial Judge erred in law in concluding under the heading 'Status of European Acts

given effect by the Act of 1993' at page 19 of the unapproved judgment, that the reference in s. 8

subsection (2)(b) to section 3 of the Act of 1972 is not for the purpose of incorporating the

regulation into the Act of 1972 or to incorporate the terms and conditions of the Act of 1972 into

the Regulation rather it is for the purpose of describing the mechanism by which the regulations

made under the Act of 1993 are to have statutory effect.

(e) That the learned Trial Judge erred in law in concluding under the heading 'Status of European Act

given effect by the Act of 1993' at page 19 of the unapproved judgment, that 'my conclusions are

that the regulations made by the Minister pursuant to his powers under section 8(2)(x) are

instruments of European legislation in their own right and quite independent of the Act of 1972

apart from the application thereto of section 4 of the Act of 1972'.

(f) That the learned Trial Judge erred in law insofar as he concluded that Regulations made pursuant

to s. 3 of the Act of 1972 did not form part of the said Act of 1972 inasmuch as the said Regulations

were expressed to have statutory effect by the provisions of section 4(1)(a) of the Act of 1972.

(g) That the learned Trial Judge erred in law insofar as he held that Regulations made pursuant to s. 8

of the Animal Remedies Act, 1993 are not deemed (by virtue of s. 8(3)(b) thereof) to have been

pursuant to the provisions of s. 3 of the Act of 1972 and are governed by that latter statutory

provision.

(h) That the learned Trial Judge erred in law in failing to hold that the provisions of s. 3(3) of the Act

of 1972 applied to regulations made pursuant to s. 8 of the Act of 1993 so as to prevent the creation

of an indictable offence by regulation.

4. Extensive written submissions were filed on behalf of the parties. Oral submissions were made by Mr. James O'Reilly

S.C. on behalf of the applicants and by Mr. Maurice Collins S.C. on behalf of the respondents. At the core of the applicants'

case was the submission that there was opaque and slack language in s. 8(3)(b) of the Act of 1993, leading to ambiguity,

that as a consequence of this ambiguity strict principles of statutory construction should be applied, and that on any such

application the Minister has no power to create an indictable offence. Thus it is a case which turns on the construction of

statutes.

5. Law

The relevant law is as follows:

The Act of 1972 provides:

"2. 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.

3. (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.

. . ."

The European Communities (Amendment) Act, 1973 s.1 provided that regulations under the Act should have statutory

effect and made provision for annulment in the following terms:

"1. - (1) The European Communities Act, 1972, is hereby amended by the substitution for section 4 of the following section:

'(1) (a) Regulations under this Act shall have statutory effect.

(b) If the Joint Committee on the Secondary legislation of the European

Communities recommends to the Houses of the Oireachtas that any regulations

under this Act be annulled and a resolution annulling the regulations is passed

by both such Houses within one year after the regulations are made, the

regulations shall be annulled accordingly and shall cease to have statutory

effect, but without prejudice to the validity of anything previously done

thereunder.

(2) (a) If when regulations under this Act are made, or at any time within one year

thereafter and while the regulations have statutory effect, Dáil Éireann stands adjourned

for a period of more than ten days and if, during the adjournment, at least one-third of the

members of Dáil Éireann by notice in writing to the Ceann Comhairle require Dáil Éireann

to be summoned, the Ceann Comhairle shall summon Dáil Éireann to meet on a day

named by him being neither more than twenty-one days after the receipt by him of the

notice nor less than ten days after the issue of the summons.

(b) If when regulations under this Act are made, or at

any time within one year thereafter and while the regulations have statutory effect,

Seanad Éireann stands adjourned for a period of more than ten days and if, during

the adjournment, at least one-third of the members of Seanad Éireann by notice in

writing to the Cathaoirleach require Seanad Éireann to be summoned, the

Cathaoirleach shall summon Seanad Éireann to meet on a day named by him being

neither more than twenty-one days after the receipt by him of the notice nor less than

ten days after the issue of the summons.

(c) Paragraphs (a) and (b) of this subsection shall not apply to regulations in relation

to which a resolution for their annulment has been refused by either House of the

Oireachtas.'

(2) This section shall have effect in relation to regulations under the European Communities Act,

1972, other than regulations confirmed by the European Communities (Confirmation of Regulations)

Act, 1973, and regulations that ceased to have statutory effect before the passing of this Act."

Offences are created by s. 20 of the Act of 1993, which provides:

"(1) A person shall be guilty of an offence under this section where the person contravenes (whether

by act or omission)

(a) section 6 or 16, or does or omits anything, the doing or omission of which is provided for by

regulations made under this Act to be an offence to which this paragraph relates,

(b) any provision of this Act other than a provision to which paragraph (a) relates, or does or

omits anything, the doing or omission of which is provided for by -

(i) this Act,

(ii) regulations continued in force or deemed to have been made under this Act, or

(iii) regulations made under this Act,

not to be lawful or to be an offence (being an offence which is not an offence to which

paragraph (a) relates),

or

(c) a term or condition of any licence or authorisation or any direction.

(2) . . .

Penalties are provided for in s. 23, as follows:

23. - (1) A person who commits an offence under section 20 (1) (a) shall be liable -

(a) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not

exceeding one year, or to both,

(b) on conviction on indictment -

(i) in the case of a first offence under this section, to a fine not exceeding £100,000, or to

imprisonment for a term not exceeding 10 years, or to both,

(ii) in the case of a second or subsequent offence under this section to a fine not exceeding

£250,000, or to imprisonment for a term not exceeding 10 years, or to both.

(2) A person who commits an offence under section 13 (3) or subsection (1) or (2) of section 18 or paragraph

(b) or (c) of subsection (1) of section 20 shall be liable -

(a) on summary conviction, to a fine not exceeding £1,000, or to imprisonment for a term not

exceeding six months, or to both,

(b) on conviction on indictment -

(i) in the case of a first offence under this section, to a fine not exceeding £25,000, or to

imprisonment for a term not exceeding 5 years, or to both,

(ii) in the case of a second or subsequent offence under this section to a fine not exceeding

£50,000, or to imprisonment for a term not exceeding 5 years, or to both.

The Act of 1993 was an Act to revise the law relating to the regulation of animal remedies by repealing the Animal

Remedies Act of 1956 and extending the provisions for the giving of effect to Acts of the European Communities relating to

animal remedies. Section 8 is at the core of the applicants' case. Section 8 states:

8. - (1) (a) Subject to subsection (6), the Minister may, after consultation with the Consultative Committee,

make regulations relating to -

(i) animal remedies,

...

(3) Where the Minister makes regulations under this section which include or are for the purpose of giving effect

to an act of one of the institutions of the European Communities then -

(a) that fact, together with the institution and act concerned, shall be specified by the Minister when making those

regulations, and

(b) the provisions of section 4 (inserted by the European Communities (Amendment) Act, 1973) of the Act of 1972 shall

apply to those regulations as if they had been made under section 3 of the Act of 1972.

The applicants have submitted that the effect of s. 8(3)(b) of the Act of 1993 is that regulations made under s. 8(2)(b)(x) are

deemed to have been made under s. 3 of the Act of 1972 and thus attract the prohibition on the creation of indictable

offences contained in s.3 of that Act.

6. Decision

I am satisfied that the applicants' submissions must fail. First, it is clear that the offence was created by s. 20 of the Act of

1993. Thus the offence was created by the Oireachtas, not the Minister. While the Act of 1972 is the primary Act for the

implementation of Community regulations it is not the exclusive Act. The Oireachtas may, and has, made other provisions.

While the Act of 1972 prohibited the creation of an indictable offence by way of regulation, the Oireachtas may, and has, in

other legislation, adopted a different approach.

In this instance s.20 of the Act of 1993 in plain and clear language creates an indictable offence and provides in s. 23 for the

penalties. The Oireachtas created the offences under s. 20 of the Act of 1993 for breaches of regulations made under s. 8 of

the Act of 1993, and made provision for penalties under s. 23 of the Act of 1993. The offence was thus not created by the

regulations.

The Minister is empowered by the Act of 1993 to make regulations, inter alia, for the purpose of giving effect to acts of the

institutions of the European Union. A breach of these regulations is an offence under s. 20 of the Act of 1993. A person

who commits such an offence may be tried summarily or by indictment and different penalties are set out for the differing

proceedings. Thus the Oireachtas has decided that breach of the regulations made under s. 8 may be an offence to be tried

on indictment. It was not a decision of the Minister. The regulations do not create an indictable offence, the Oireachtas

created the offence.

This is sufficient grounds upon which to dismiss the appeal.

However, secondly, as it was argued forcibly on behalf of the applicants, I shall address also the issue of the wording of s.

8(3)(b). The relevant words are:

"Where the Minister makes regulations under this section which include or are for the purpose of

giving effect to an act of one of the institutions of the European Communities then -

...

the provisions of section 4 (inserted by the European Communities (Amendment) Act, 1973) of the

Act of 1972 shall apply to those regulations as if they had been made under section 3 of the Act of

1972."

The natural and plain meaning of these words is that where the Minister makes regulations under this section which include

or are for the purpose of giving effect to an act of one of the institutions of the European Communities then the provisions

of s. 4 of the Act of 1972 (as amended) shall apply to those regulations. This is the ordinary meaning of the words. Counsel

for the appellants has laid great store on the words:

"as if they had been made under section 3 of the Act of 1972".

Counsel submitted that the words created ambiguity as they raise the possibility that other sections of the Act of 1972 apply

and that, following the rules of the construction of statutes, then, if ambiguity exists, the sections of the Act of 1972 should

be construed as applying. If the terms of the Act of 1972 apply, it was submitted, there could not be an indictable offence.

Leaving aside my decision, as to the creation of the offence by the Oireachtas, as set out above, I am satisfied that this

submission also falls.

The words are plain and clear - s. 4 of the Act of 1972 is to apply. This section relates to the annulment of regulations

procedures. The words "as if they" do not raise an ambiguity. Rather, it is clear that the regulations are not made under the

Act of 1972. Further, this is to be contrasted with the words of s. 8(8) which uses the term 'deemed', which may be

distinguished from the words of s. 8(3)(b). The clear meaning is that, in this short form of words in s. 8(3)(b), s. 4 of the

Act of 1972 as amended is applied to the regulations.

The words "as if they had been made under Section 3 of the Act of 1972", do not detract from the clarity of the section.

The sense is plain: it is to be as if the regulations had been made under s. 3 of the Act of 1972, as amended. There is no

ambiguity. The words 'as if' do not qualify the sense, or create vagueness, or opacity. Consequently, in response to this

submission, I am satisfied that there is no ambiguity in s. 8(3)(b) as submitted on behalf of the applicants.

Counsel also submitted that the fact that there are two annulment procedures is evidence of ambiguity. I am satisfied that

while there are two annulment procedures, this is not an argument which could affect the issue. Counsel submitted that s. 4

of the Act of 1972, as amended, is the section upon which s. 8(3)(b) hangs the intent of the legislature. However, it is clear

from the plain language of the section that there is no ambiguity, as described above. There being no ambiguity this issue

does not arise for decision. In the circumstance I would not intervene with the decision of the learned trial judge as to the

effect of the annulment procedures. He stated:

"Clearly under the Act of 1993 there are two annulment procedures involving the Oireachtas in

respect of regulations made under the Act of 1993. The annulment procedures are differentiated

between those applicable to community based secondary legislation and non community based

secondary legislation and do not give rise to grounds to change my view in relation to the nature of the

regulations made under s. 8(2)(x) of the Act of 1993."

A point which, while addressed in the written submissions, was not raised at the oral hearing relates to the consequence of

applying s. 4(1)(a) of the Act of 1972, as amended, which provides: 'Regulations under this Act shall have statutory effect'.

The issue referred to in written submissions is that a regulation under the Act of 1993 therefore had 'statutory effect', and it

was submitted that the power to amend a statute by regulation is conferred only by the Act of 1972. This raised the query

whether regulations made under the Act of 1993 can be amended only by statute. This issue was considered by the learned

trial judge. However, it formed no part of the oral debate. While this raises an interesting point of interpretation, which may

have importance in a different context, in the circumstances of this case I make no decision on the issue.

Conclusion

In conclusion, s. 20 of the Act of 1993 provides expressly that breach of any of the regulations made under the Act shall be

an indictable offence. This was a decision of the Oireachtas, and not the Minister.

The Act of 1993 confers express power on the Minister to make regulations relating to EU matters. There is no ambiguity in

s. 8(3)(b) of the Act of 1993. The regulations are made under the Act of 1993. The clarity of the words is copper-fastened

by contrasting them to those in s. 8(8) where the term 'deemed' is used.

For these reasons I would dismiss the appeals and affirm the order of the High Court.