Hayes v Ireland

• Jurisdiction: Ireland
• Judgment Date: 18 June 2010
• Date: 18 June 2010
• Docket Number: [2007 No. 322 JR]
• Court: High Court

Hayes v. Ireland

Clement Hayes

Applicant

and

Ireland, The Attorney General and The Minister for Agriculture and Food and District Judge Finn

Respondents

[2010] IEHC 325,

[2007 No. 322 JR]

High Court

European law - Statutory interpretation - Criminal law - Indictable offence - Agriculture - Delegated legislation - Principles and policies - Transposition of European legislation -Inadequate transposition of European legislation - Area of exclusive European competency - Statutory instrument purporting to create indictable offence - Statutory instrument altering or extending ingredients of indictable offence - Constitutionality of regulations having statutory effect - Whether possible to ascertain commencement date of regulations having statutory effect - Whether pre-existing orders can give effect to European law - Whether creation of statutory instrument ultra vires powers of Minister - Whether Interpretation Acts determine commencement date of regulations having statutory effect - Whether possible to ascertain commencement date of regulations having statutory effect - European Communities (Identification and Registration of Bovine Animals) Regulations 1999 (S.I. No. 276) - Interpretation Act 1937 (No. 38 ), ss. 8 and 9 - Diseases of Animals Act 1966 (No. 6) - European Communities Act 1972 (No. 27), ss. 3 and 4 - European Communities (Amendment) Act 1973 (No. 20) - Interpretation Act 2005 (No. 23), ss. 15 and 16 - Constitution of Ireland 1937, Article 15.2.1ø - Council Regulation (E.C.) 820/97 - Council Regulation (E.C.) 1760/2000.

Words and phrases - "Holding" - Brucellosis in Cattle (General Provisions) Order 1991 (S.I. No. 114) - Diseases in Animals Act 1966 (No. 6).

The applicant was a farmer who was served summonses alleging contraventions of a number of orders and regulations relating to the testing of cattle for bovine tuberculosis ("T.B.") and brucellosis. Among the regulations under which he was charged included the European Communities (Identification and Registration of Bovine Animals) Regulations 1999 ("the E.C. (I.R.B.A.) Regulations 1999") which were enacted to transpose Council Regulation 820/97 and Council Regulation 1760/2000. Other summonses related to breaches of orders made pursuant to the Diseases of Animals Act 1966. It was common case that a central component to all of those charges was the definition of the word "holding". The applicant argued in the District Court that, inter alia, inconsistencies in the definition of that word between national legislation, under which he was charged, and the relevant European legislation were such that the national legislation should be set aside and the summons dismissed. The trial judge held that the European legislation had been effectively transposed.

The applicant instituted judicial review proceedings, seeking,inter alia, an order of prohibition preventing his further prosecution. He contended that the relevant European legislation had been ineffectively transposed. Furthermore, the control of diseases in cattle, in particular bovine T.B. and brucellosis, had become an area of exclusive European competency, so that orders made under the Diseases of Animals Act 1966 were ultra vires the powers granted to the Minister under that Act, either simpliciter or because they were in fact implementing European law and should have been made under s. 3 of the European Communities Act 1972. He further contended that the orders sought to create an indictable offence, since the E.C. (I.R.B.A.) Regulations 1999 altered or extended the ingredients of offences under the Diseases of Animals Act 1966, contrary to s. 3(3) of the European Communities Act 1972. He also contended that the permission granted by the Act of 1972 to the third respondent to create orders with statutory effect was unconstitutional having regard to Article 15.2.1ø of the Constitution.

Held by the High Court (McKechnie J.), in refusing the reliefs sought, 1, that there was no conflict between the definitions of "holding" and "kept" in the national regulations and the impugned Council regulations but, at most, there was merely ambiguity. In cases where there was ambiguity, it was appropriate to have regard to both the circumstances surrounding the Council regulation and the relationship between the implementing legislation and the parent regulation. While it might be preferable for the national legislation to transpose definitions verbatim, its failure to so do was not fatal.

2. That the control of diseases in cattle had not become an area of exclusive European competency and orders made under the Diseases of Animals Act 1966 could not give effect to European law. It was not a requirement of Irish constitutional law that any obligations imposed on the State by the European Union, whether by directive or regulation, could only be brought into force by a statutory provision which provided for the making of an order to give effect to the European legislation and that pre-existing provisions were rendered invalid. The fact that there might be overlap between European legislation and national legislation would not render regulations made under the national legislation impermissible, provided that those regulations were intra vires the parent Act and consistent with the European legislation.

Browne v. Ireland [2003] 3 I.R. 205 andKennedy v. Attorney General [2005] IESC 36, [2007] 2 I.R. 45 considered.

3. That if s. 3 of the European Communities Act 1972 prohibited the creation of indictable offences, it logically excluded the extension or alteration of them since the expansion of a criminal provision already in place could create new criminal liability where there was none before. The impugned articles of the E.C. (I.R.B.A.) Regulations 1999 were intra vires and were not unconstitutional since they did not either extend or alter the ingredients of an indictable offence.

Browne v. Ireland [2003] 3 I.R. 205 applied.

4. That s. 4 of the European Communities Act 1972, as amended, was not unconstitutional as it purported to confer statutory status upon orders of the third respondent which would be unconstitutional but for Article 29.4.10ø and it was necessitated by membership of the European Union. It followed that if the power to amend exclusive legislation through ministerial order under the European Communities Act 1972 was constitutional, then the power to make orders having statutory effect had also to be so.

Maher v. Minister for Agriculture [2001] 2 I.R. 139and Meagher v. Minister for Agriculture [1994] 1 I.R. 329 followed; Kennedy v. Attorney General[2005] IESC 36, [2007] 2 I.R. 45 and Browne v. Ireland [2003] 3 I.R. 205 distinguished.

5. That statutory instruments having statutory effect were covered by the Interpretation Acts 1937 to 1997 and the Interpretation Act 2005 and that there was no ambiguity as to their commencement date.

Obiter dictum: Any regulation made under the European Communities Act 1972 must still be intra vires the Act, and thus must comply with the principles of constitutional justice and could still be challenged in that way.

Cases mentioned in this report:-

Amministrazione delle Finanze dello Stato v. Simmenthal S.p.A. (Case 106/77) [1978] E.C.R. 629.

Browne v. An Bord Pleanála [1991] 2 I.R. 209; [1989] I.L.R.M. 865.

Browne v. Ireland [2003] 3 I.R. 205.

Cityview Press v. An Comhairle Oiliúna [1980] I.R. 38.

Commission v. Belgium (Case 102/79) [1980] E.C.R. 1473.

Commission v. Germany (Case 29/84) [1985] E.C.R. 1661; [1986] 3 C.M.L.R. 579.

Commission v. Italy (Case 145/82) [1983] E.C.R. 711; [1984] 1 C.M.L.R. 148.

Commission v. The Netherlands (Case 236/85) 1987] E.C.R. 3989.

Commission v. The United Kingdom (Case 804/79)[1981] 2 E.C.R. 1045; [1982] C.M.L.R. 543.

Costa v. Enel [1964] E.C.R. 585; [1964] C.M.L.R. 425.

Deutsche Milchkontor GmbH v. Germany (Cases 205 to 218/82)[1983] E.C.R. 2633; [1984] 3 C.M.L.R. 586.

G.V.M. Exports Ltd. v. Ireland [2010] IEHC 323, (Unreported, High Court, McKecknie J., 28th July, 2010).

Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle Für Getreide und Futtermittel (Case 11/70)[1970] E.C.R. 1125.

Kennedy v. Attorney General [2005] IESC 36, [2007] 2 I.R. 45.

Maher v. Minister for Agriculture [2001] 2 I.R. 139; [2001] 2 I.L.R.M. 481.

Meagher v. Minister for Agriculture [1994] 1 I.R. 329; [1994] 1 I.L.R.M. 1.

Quinn v. Ireland [2007] IESC 16, [2007] 3 I.R. 395; [2007] 2 I.L.R.M. 101.

Judicial review

The facts have been summarised in the headnote and are more fully set out in the judgment of McKechnie J., infra.

The applicant was granted leave to apply for judicial review by the High Court (Peart J.) on the 26th March, 2007. By notice of motion dated the 26th March, 2007, the applicant applied to the High Court for, inter alia, a declaration that those articles which he was alleged to have impugned were ultra vires s. 3 of the Diseases of Animals Act 1966, a declaration that s. 4 of the European Communities Act 1972, as amended, was unconstitutional, an order of certiorariquashing the ruling of the District Court Judge, and an order of prohibition preventing his trial in relation to the charges.

The application for judicial review was heard by the High Court (McKechnie J.) on the 21st, 22nd and 23rd July, 2009.

Cur. adv. vult.

McKechnie J. 18th June, 2010

[1] This judgment is given in respect of an application heard by this court at the same time as it heard the associated linked cases of GVM Exports Limited (in voluntary liquidation) v. Ireland (Record No. 2005/843 P) andGVM Exports Limited (in voluntary liquidation) v. Minister for Agriculture, Food and Rural Development and District Judge O'Halloran (Record No. 2003/745 JR), in respect of which a separate judgment is given (G.V.M. Exports Ltd. (in voluntary liquidation) v. Ireland [2010] IEHC 323, (Unreported, High Court, McKechnie J., 28th July, 2010).

Background

[2] The applicant is a farmer in Emly...