Gearty and Another v Director of Public Prosecutions and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 20 July 2023 |
| Neutral Citation | [2023] IEHC 409 |
| Court | High Court |
| Docket Number | 2014 No. 773 JR |
[2023] IEHC 409
2014 No. 773 JR
THE HIGH COURT
JUDICIAL REVIEW
Rosario Boyle SC and Anthony Lowry for the applicants instructed by Trayers & Company
Brian Kennedy SC, Conor Power SC and Emily Egan McGrath for the respondents instructed by the Chief State Solicitor
JUDGMENT of Mr. Justice Garrett Simons delivered on 20 July 2023
This judgment is delivered in respect of a challenge to the validity of Section 3 of the European Communities Act 1972 (as amended). In brief, the applicants contend that the Constitution of Ireland does not allow for the creation of an indictable offence other than by way of primary legislation. It is further contended that a statutory provision, which purports to allow members of the executive branch of government to make regulations which create indictable offences, is invalid. The applicants rely, in particular, on the provisions of Article 15 and Article 38 of the Constitution of Ireland.
The applicants in the present proceedings are being prosecuted for alleged breaches of the domestic regulations which implement the Habitats Directive (Council Directive 92/43/EEC). The domestic regulations are entitled the European Communities (Birds and Natural Habitats) Regulations 2011 ( S.I. No. 477 of 2011). These regulations will be referred to throughout this judgment by the shorthand “ the Natural Habitats Regulations”.
The Natural Habitats Regulations were made by the Minister for Arts, Heritage and the Gaeltacht in exercise of the powers conferred upon him by Section 3 of the European Communities Act 1972. As explained presently, this section had been amended in 2007 so as to confer an express power on a Minister of the Government to create an indictable offence.
The Natural Habitats Regulations purport to create a number of offences which are triable either summarily or by indictment. These include, relevantly, offences in respect of the refusal of entry to an authorised officer, and the obstruction or impeding of an authorised officer in the exercise of any of his or her functions. These are the offences of which the applicants stand charged.
The criminal proceedings against the applicants were last before the District Court on 2 September 2014. On that occasion, the presenting guard indicated that they had directions from the Director of Public Prosecutions that all matters could be disposed of summarily. The criminal proceedings have, in effect, been stayed pending the determination of these judicial review proceedings.
The applicants' case, as pleaded in the statement of grounds, had sought to challenge the validity of the Natural Habitats Regulations on the basis, principally, that the Minister had acted ultra vires his powers under Section 3 of the European Communities Act 1972 in purporting to create an indictable offence. Put otherwise, it had been argued that the Habitats Directive did not articulate principles and policies which would allow the Minister lawfully to make regulations which created an indictable offence. The challenge to the Natural Habitats Regulations is separate and distinct to the challenge made to the validity of the European Communities Act 1972. It represents a challenge to the validity of the secondary legislation, rather than to the parent legislation pursuant to which the secondary legislation had purportedly been made.
As it happens, at the time these proceedings were instituted in 2014, there were other proceedings in being which raised a similar type of challenge to the validity of the Natural Habitats Regulations. It was agreed that one such case would be heard first, with the other cases, including the present proceedings, being adjourned to await the outcome of the lead case.
The lead case is the subject of written judgments by both the High Court and the Court of Appeal. These judgments are discussed at paragraphs 37 to 41 below. The Natural Habitats Regulations were upheld as having been validly made pursuant to the European Communities Act 1972.
Confronted with these judgments, the applicants in the present case accept that they cannot now pursue a successful challenge to the Natural Habitats Regulation on the grounds that the Minister acted ultra vires in making the regulations pursuant to the European Communities Act 1972. The applicants seek, instead, to challenge the validity of the parent legislation itself.
The proceedings ultimately came on for hearing before me over three days on 22 June, 23 June and 6 July 2023, respectively. The parties had previously agreed a statement of facts and the case falls to be determined by those agreed facts.
It should be flagged that the respondents have raised two procedural objections, relating to pleadings and locus standi, respectively. These procedural objections are considered at paragraph 64 et seq. below.
European Directives, such as the Habitats Directive, are not normally directly applicable in the domestic legal order of a Member State, but instead require to be transposed by way of national legislation. (This is subject to a possible exception in the case of those provisions of a Directive which have “ direct effect”, but that concept is not immediately relevant to the present case.) The CJEU has consistently held that the provisions of a Directive must be implemented into the domestic legal order with “ unquestionable binding force”, and with the specificity, precision and clarity required in order to satisfy the need for legal certainty. (See, for example, Commission v. Ireland (Case C-50/09) EU:C:2011:109, [2011] E.C.R. I-873.)
The introduction of national implementing legislation is, therefore, necessary to transpose directives into the domestic legal order. EU law is largely indifferent to whether such national legislation is primary or secondary legislation, provided that it is legally binding. The distinction between primary and secondary legislation is, however, a matter of great significance under Irish constitutional law. This significance arises as a consequence of the fact that legislative power is exclusively vested in the Oireachtas. Article 15.2.1° of the Constitution of Ireland reads as follows:
“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”
It is well established in the case law that this does not preclude the delegation by the Oireachtas of a power to make secondary legislation. This is subject to the proviso that the parent legislation must contain a sufficient statement of “ principles and policies” to guide the delegate in making the secondary legislation.
This approach has been applied, in modified form, to secondary legislation which is made for the purposes of implementing EU legislation. In effect, the EU legislation is treated as the parent legislation. It is constitutionally permissible to employ secondary legislation to implement EU legislation provided that the secondary legislation does no more than fill in the details of “ principles and policies” contained in the EU legislation. If, however, the European legislation leaves over significant policy choices to the Member States, then primary legislation may be required as a matter of constitutional law.
The precise mechanism by which transposition of EU legislation is achieved is via the European Communities Act 1972. The Act authorises the use of secondary legislation to give effect to EU legislation, including European Directives. Section 2 provides that acts adopted by the institutions of the European Union (and by the institutions of what was formerly the European Communities) shall be part of the domestic law of the State under the conditions laid down in the Treaties governing the European Union.
Section 3 of the European Communities Act 1972 has been amended by the European Communities Act 2007 and the European Union Act 2009. The first two sub-sections of Section 3 remain unchanged and read as follows:
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“(1) A Minister of State may make regulations for enabling section 2 of this Act to have full effect.
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(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).”
As appears, regulations under the section can, in principle, be used to repeal or amend other legislation, including primary legislation.
The Supreme Court in Meagher v. Minister for Agriculture [1994] 1 I.R. 329 held that these powers are constitutional by reference to what was then Article 29.4.5° of the Constitution of Ireland. See pp. 351–352 of the reported judgment as follows:
“The power to make regulations contained in section 3, sub-s. 1 of the Act of 1972 is exclusively confined to the making of regulations for one purpose, and one purpose only, that of enabling s. 2 of the Act to have full effect. Section 2 of the Act which provides for the application of the Community law and acts as binding on the State and as part of the domestic law subject to conditions laid down in the Treaty which, of course, include its primacy, is the major or fundamental obligation necessitated by membership of the Community. The power of regulation-making, therefore, contained in s. 3 is prima facie a power which is part of the necessary machinery which became a duty of the...
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