Supreme Court holds Minister lacks power to amend regulations with statutory effect under Animal Remedies Act 1993.

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 (NO. 2)

RESPONDENTS

BETWEEN/

DARRAGH QUINN

APPLICANT/APPELLANT

AND IRELAND, THE ATTORNEY GENERAL, AND THE

MINISTER FOR AGRICULTURE, FOOD AND RURAL DEVELOPMENT (NO. 2)

RESPONDENTS

BETWEEN/

NEIL TECTOR

APPLICANT/APPELLANT

AND

IRELAND, THE ATTORNEY GENERAL AND THE

MINISTER FOR AGRICULTURE, FOOD AND RURAL DEVELOPMENT (NO. 2)

RESPONDENTS

Judgment delivered on the 29th day of March, 2007 by Denham J.

1. The query before the Court is a technical issue and is whether the Minister may amend regulations which have statutory effect by

further regulations made under s. 8 of the Animal Remedies Act, 1993, or whether such amendments may be made by statute only.

2. In Quinn and ors. v. Ireland and Ors. (No. 1) [2006] IESC 65, in a judgment delivered on 28th day of November, 2006, I stated:

"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."

3. Consequent to an application on behalf of the applicants the Court has permitted the parties to address this legal issue. The issue

is whether regulations made under the Animal Remedies Act, 1993, which have statutory effect, may be amended by the Minister in

further regulations under the Animal Remedies Act, 1993, or may be amended only by statute of the Oireachtas. To look at the issue

from another aspect, whether the power to amend regulations, which have statutory effect, by statutory instrument, is a power

conferred in the European Communities Act, 1972 but not in the Animal Remedies Act, 1993.

4. Submissions

Extensive written and oral submissions were presented by both parties. The essence of the submissions were as follows. On behalf of

the applicants it was submitted that s. 3(2) of the European Communities Act, 1972 is the exclusive basis of a power for a Minister to

amend regulations which have statutory effect and that s. 8 of the Animal Remedies Act, 1993 does not contain such a power.

Consequently, it was submitted, regulations (which have statutory effect) made under s. 8 may only be amended by statute.

On behalf of the State it was submitted that such regulations may be amended by the Minister by way of further regulations under s.

8 of the Animal Remedies Act, 1993, such regulations also having statutory effect; that the power to make regulations conferred on

the Minister by s. 8 is to be read as including a power to repeal, amend or replace regulations previously made in exercise of that

power. Counsel referred to the Interpretation Act, 1937.

5. Facts

The facts upon which this legal issue arises relate to a number of prosecutions currently pending before the District Court concerning

regulations made by the Minister for Agriculture, hereinafter referred to as "the Minister", under s.8 of the Animal Remedies Act, 1993;

and some further regulations made by the Minister under s. 8 amending earlier regulations made under s. 8. The applicants referred to

the following complaint, as illustrating the respondents' reliance on the amending regulations made under the Animal Remedies Act,

1993. The following complaint was laid and refers to the first applicant, as:

"That you the above accused on the 28th day of March 2003 within the District Court area as aforesaid at Pearse Street,

Ballina, in the County of Mayo, had possession of, sold or supplied a ready made animal remedy namely 'Quinns Hoose and

Worm Drench (ARA 125296)' containing Levamisole other than in the form of a proprietary animal remedy in contravention

of Regulation 4 of the Animal Remedies Regulations 1996 (S.I. 179 of 1996) as amended by S.I. No. 507 of 1998 and S.I.

No. 44 of 2002 being an offence pursuant to s. 20 of the Animal Remedies Act, 1993 and punishable pursuant to s. 23 of

the Animal Remedies Act, 1993."

In issue are regulations made under s. 8 of the Animal Remedies Act, 1993, being: Animal Remedies Regulations 1996 (S.I. No. 179 of

1996), Control of Animal Remedies and their Residue Regulations 1998 (S.I. No. 507 of 1998), and Animal Remedies (Amendment)

Regulations, 2002 (S.I. No. 44 of 2002). The Regulations of 1996 were made by the Minister under s. 8 of the Animal Remedies Act,

1993 to give effect to various EC Council Directives. Relevant sections include s. 8(2)(b)(x) and s. 8(3) of the Animal Remedies Act,

1993. The Regulations of 1998 were also made under s. 8 of the Animal Remedies Act, 1993, except with regard to Regulation 30 of

the Regulations of 1998 which was made under s. 3 of the European Communities Act, 1972. The Regulations of 2002 were also made

under s. 8 of the Animal Remedies Act, 1993.

6. Law

The relevant law is that relating to the amendment of regulations which have statutory effect. The European Communities Act, 1972

provided in s. 2 that from the 1st 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 of the State under

the conditions laid down in the treaties. As was correctly anticipated this would given rise to a very large volume of law emanating

from the EU communities into our domestic law. To meet this development Ministers of State were given specific power to make

regulations. Sections 3 of the European Communities Act, 1972 provides:

"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 modifications, other law, exclusive of this Act)."

...

These express powers to the Minister are extensive - though they do not extend so far as to create an indictable offence: see s.

3(3). However, the Oireachtas has expressly given power to the Minister to make regulations which include incidental, supplemental

and consequent provisions including provisions repealing, amending or applying other law. Pursuant to s. 4 of the European

Communities Act, 1972, regulations under this Act shall have statutory effect.

In contrast s. 8(1)(a) of the Animal Remedies Act, 1993 provides that the Minister may, after consultation with the Consultative

Committee, make regulations relating to, inter alia, animal remedies. Pursuant to s. 8(1)(b) regulations under this section may:-

"(iv) contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or

expedient for the purpose of regulations under this section."

There is not the specific reference to a power " . . . amending . . . other law . . ." as found in the European Communities Act, 1972.

A specific power is given in s. 8(2)(b)(x). Without prejudice to the generality of subsection (1) or s. 9, regulations made under that

subsection may provide for:-

"the purpose of giving effect or further effect to existing or future acts of the institutions of the European Communities

which relate to -

(I) veterinary medicinal products, or

(II) residues of veterinary medicinal products in animals or foodstuffs, or

(III) any other matter in respect of which the Minister may make regulations in respect of any other provisions

specified in this subsection or in subsection (1).

A status is conferred on such regulations. Section (3) provides:

"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."

As previously decided, the natural and plain meaning of the words of s. 8(3)(b) 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) apply. Therefore, as the provisions of s.4 of the European Communities

Act, 1972 apply to regulations made under s. 8 of the Animal Remedies Act, 1993, s. 4(1)(a) of the Act of 1972 applies, and the

regulations made under the Act of 1993 "shall have statutory effect."

Statutory effect

The regulations under consideration are not ordinary regulations, they are regulations with statutory effect. It is an unusual form of

law - it is a regulation with statutory effect, but it is not a statute.

The regulations under consideration 'have statutory effect'. Without attempting to give a conclusive definition of 'statutory effect', it

is clear that such a regulation has an effect as if it were a statute. It gives a special status to the regulation. A consequence of such

status means that it should be dealt with as if it were a statute of the Oireachtas. It has the same status as an Act of the

Oireachtas. Therefore the method by which it may be amended requires to be considered from the perspective of this statutory

status. As a consequence of having such status, such regulations may only be amended by the Oireachtas. Regulations themselves

cannot amend statutes of the Oireachtas - absent express constitutional provisions.

The European Communities Act, 1972, as amended, specifically gives to the Minister power to amend the law by regulations. There is

no such power given in s.8 of the Animal Remedies Act, 1993.

The absence of such an express power for the Minister, in a constitutional format, is determinative of the case. Such absence may

have been a policy decision by the Oireachtas. Or it may have been an oversight in drafting. For whatever reason such power is not

explicitly given to the Minister in the Animal Remedies Act, 1993.

The provision of the power given expressly in the European Communities Act, 1972 was a policy decision by the Oireachtas. It gave a

most important power to the Minister, for policy reasons. As was held in Meagher v. Minister for Agriculture [1994] 1 I.R. 329, the

power to make regulations contained in s. 3(2) of the Act of 1972 was necessitated by the obligations of memberships of the

European Community and was by virtue of the provisions of Article 29, s. 4 sub-ss. 3,4 and 5 immune from constitutional challenge.

Further, the provisions of s. 3(2) of the Act of 1972 conferred an express power upon the Minister to include in regulations made

pursuant to the provisions of s. 3(1) of that Act such incidental, supplementary and consequential provisions as appeared to him to

be necessary for the purposes of the regulations, including provisions repealing, amending or applying, with or without modification,

other laws, exclusive of the Act of 1972. As was pointed out in Maher v. Minister for Agriculture [2001] 2 I.R. 139, while the member

state is obliged to implement the directive or the specified part of the regulation, the choice of form and method for implementation is

clearly a matter for the member state. The choice of implementation by statutory instrument in that case was held to be valid under

Irish law as the regulations were part of Irish law and could be regarded in the same way as an enabling statute of the Oireachtas,

where one could find the principles and policies laid down.

That brings us to the situation in this case. Here it is a question of determining what the national, Irish, law has established.

Interpretation Act

Reference was made to s. 15(3) of the Interpretation Act, 1937. Section 15(3) provides:

"Every power conferred by an Act of the Oireachtas to make any regulations, rules, or bye-laws shall, unless the contrary

intention appears in such Act, be construed as including a power, exercisable in the like manner and subject to the like

consent and conditions (if any), to revoke or amend any regulations, rules, or bye-laws made under such power and

(where requisite) to make other regulations, rules, or bye-laws in lieu of those so revoked."

The Act of 1937 was repealed by the Interpretation Act, 2005, but was in force when the regulations in issue were made. Section

15(3) of the Act of 1937 was substantially re-enacted in the Act of 2005.

There is a fundamental difference between an ordinary statutory regulation and a statutory regulation having statutory effect.

Section 15 (3) cannot be interpreted as covering the latter. The same would be true of the re-enacted subsection in the Act of 2005.

Decision

To provide that a law may be amended by statutory instrument as in the European Communities Act, 1972, is an exceptional power

given by the Oireachtas, pursuant to the Constitution, to a Minister. It was necessitated by the obligations of membership of the

European Communities, which itself gave rise to a high volume of technical regulations based on Community law. Such power would, in

general, be an impermissible delegation of legislative powers, without the specific legislative and constitutional foundation.

I am satisfied that it would be a step too far to infer such a power in an Act which did not expressly provide for such a power.

Further, I am satisfied that to make such an inference would be to legislate - a matter for the Oireachtas, not a court of law.

Indeed, it would be an unconstitutional construction of the Act of 1993. There being a constitutional construction to the provisions

open, then that is the correct construction. In essence, the power created in s. 3(2) of the European Communities Act, 1972 is not in

the Animal Remedies Act, 1993, and that is fatal to the argument of the respondents. At its height the drafting is ambiguous.

Consequently, the Animal Remedies Act, 1993 not containing any such constitutionally valid express power to the Minister to amend a

regulation having statutory effect, I am satisfied that the Minister does not have such power. Therefore, the Minister does not have

the power to make regulations to amend previous regulations which he has made under the Animal Remedies Act, 1993 as the original

regulations made by the Minister have 'statutory effect'. The fact that new regulations would have the same status as the previous

regulations does not meet the problem that statutes may not be amended by statutory instruments unless expressly and

constitutionally so provided, as in the European Communities Act, 1972. Such power is a delegation of legislative power only

constitutionally sound because it is necessitated by the obligations of the European Community. The issues raised by the absence of

the express power to the Minister are fundamental in a parliamentary democracy. A democratic deficit is an issue to be determined by

the Oireachtas. It is only when that body expressly and constitutionally delegates its great power that the power may be exercised

by a Minister.

Conclusion

For the reasons given I would allow the appeal on this issue. Counsel, after considering the judgment, may wish to address the Court

as to the effect of this determination on the summonses before the Court.