Kennedy v Attorney General, Minister for The Marine and Natural Resources

• Jurisdiction: Ireland
• Judge: Mr Justice Fennelly,Denham J.
• Judgment Date: 31 May 2005
• Neutral Citation: [2005] IESC 36
• Court: Supreme Court
• Docket Number: [S.C. No. 471 of 2004]
• Date: 31 May 2005

[2005] IESC 36

THE SUPREME COURT

MURRAY C.J.

DENHAM J.

HARDIMAN J.

FENNELLY J.

McCRACKEN J

RECORD NO. 471/2004

KENNEDY v AG & MIN FOR MARINE

BETWEEN

THOMAS KENNEDY

APPLICANT/RESPONDENT

AND

THE ATTORNEY GENERAL, MINISTER FOR THE MARINE AND NATURAL RESOURCES.

RESPONDENTS/APPELLANTS

MACKEREL (LICENSING) ORDER 1999 SI 311/1999

FISHERIES (CONSOLIDATION) ACT 1959 S223A

FISHERIES (AMDT) ACT 1983 S4

EEC REG 2846/98

MACKEREL (LICENSING) ORDER 1999 ART 3(10)

FISHERIES (AMDT) ACT 1978 S9

EEC REG 2847/93 TITLE I ART 2.1

EEC REG 2847/93 TITLE I ART 4

EEC REG 2847/93 TITLE II ART 6.1

EEC REG 2847/93 TITLE II ART 6.3

EEC REG 2847/93 TITLE II ART 7

EEC REG 2847/93 ART 9

EUROPEAN COMMUNITIES ACT 1972 S2

EUROPEAN COMMUNITIES ACT 1972 S3(3)

FISHERIES (CONSOLIDATION) ACT 1959 S224B

FISHERIES (AMDT) ACT 1978 S10

FISHERIES (AMDT) ACT 1983 S5

BROWNE v AG 2003 3 IR 205

EUROPEAN COMMUNITIES ACT 1972 S3(1)

CONSTITUTION ART 15EEC REG 1239/98

CITYVIEW v AN CHOMHAIRLE OILIUNA 1980 IR 381

SEA FISHERIES (DRIFTNETS) ORDER 1998

EEC REG 3760/92 ART 2(1)

EEC REG 2847/93 ART 1(1)

EEC REG 2847/93 ART 18

EEC REG 2847/93 ART 24

EEC REG 2847/93 ART 26

EEC REG 2847/93 ART 4.1

KRAMER 1976 ECR 1279

COMMISSION v UK 1981 ECR 1045

EEC REG 2847/93 ART 7(1)

EEC REG 2846/98 ART 1(7)

FISHERIES (AMDT) ACT 1978 S2

EUROPEAN UNION: Fisheries

Criminal law - Indictable offence -Delegated legislation - Principles and policies - Applicant granted licence pursuant to statutory instrument - Statutory instrument purporting to create indictable offence - Applicant seeking to prohibit prosecution on indictment for alleged breach of conditions attached to licence - Whether statutory instrument made in application of European Community or national policy - Whether statutory instrument ultra vires powers of Minister - Mackerel (Licensing) Order 1999 (SI 311/1999) - Fisheries (Consolidation) Act 1959 (No 14), s 223A - European Communities Act 1972 (No 27), s 3(3) - Council Regulation (EEC) 2847/93 - Council Regulation (EC) 2846/98 - Respondent's appeal dismissed (471-2004 - Supreme - 31/5/2005) [2005] IESC 36

Kennedy v AG & Min for Marine

Facts: the applicant was charged with various breaches of fishery regulations which were deemed to be indictable offences pursuant to the Mackerel (Licensing) Order 1999. He applied to judicially review his prosecution on the basis, inter alia, that the Order of 1999 was ultra vires the power of the respondent as creating indictable offences for the purpose of implementing Community law. The Respondent contended, inter alia, that the Order of 1999 had been implemented in pursuance of national fisheries policy and that it also had the effect of implementing Community policies in the area, was of tangential importance.

Held by the Supreme Court in dismissing the appeal and declaring that the Order of 1999 was made ultra vires the powers of the respondent under section 223A of the Act of 1959, in purporting to implement (EC) Regulation 2847/93, as amended:

1. that section 3(3) of the European Communities Act 1972 stated a policy and principle that regulations made by a Minister enabling Community law could not create an indictable offence as it retained to the Oireachtas the power to create indictable offences and any change in that policy should be clear from the words of a statute.

2. That sections 223A and 224B of the Fisheries (Consolidation) Act 1959 formed part of a fisheries policy which had to be analysed in the context of Irish law and the common fisheries policy of the European Union. The Order of 1999 was in substance an order made for the purpose of restricting fishing in order to conserve marine resources so as to give effect to the rules and objectives of the common fisheries policy and it would be unrealistic to consider that the Order was enacted for the purpose of a residual power of the State to manage and conserve the resources of the sea for national purposes without reference to European Community measures in the field such as Regulation (EC) 2847/93.

3. That the specific condition in the Order of 1999 was primarily based on Community law and the fact that there was an element of national fisheries management in the provision did not vitiate the overarching Community law aspect of it and that, therefore, the respondent had acted ultra vires in purporting to implement Community law, more specifically Council Regulation (EC) 2847/93, as amended by Council Regulation (EC) 2846/98, by purporting to promulgate the Mackerel (Licensing) Order 1999 allegedly pursuant to section 223A of the Fisheries (Consolidation) Act 1959.

Reporter: P.C.

1 Judgment delivered on the 31st day of May, 2005 by Denham J.

2 1. This is an appeal by the Attorney General and the Minister for Marine and Natural Resources, the respondents/appellants, hereinafter referred to collectively as "the respondents", from a decision of the High Court ( Ó Caoimh J.) given on 31st July, 2004, whereby the Mackerel (Licensing) Order 1999 ( S.I. No 311 of 1999) was declared to be ultra vires s. 223A of the Fisheries (Consolidation) Act, 1959(as inserted by s.9 of the Fisheries (Amendment) Act, 1978and as amended by s.4 of the Fisheries (Amendment) Act, 1983). The High Court determined that the Mackerel (Licensing) Order 1999 was ultra vires in that the Minister for the Marine and Natural Resources, hereinafter referred to as "the Minister", had purported to promulgate the said Order pursuant to s. 223A in order to give effect to Council Regulation (EEC) No. 2847/93, as amended by Council Regulation (EC) No. 2846/98.

3 2. Thomas Kennedy, the applicant/respondent, hereinafter referred to as the applicant, is a fisherman who holds a licence granted pursuant to article 3 of the Mackerel (Licensing) Order 1999 (hereinafter referred to as "the order"). There were two pertinent conditions attached to the licence. First, condition 8 required the applicant to give four hours notice to a sea fisheries protection officer at the relevant port of his intention to land or tranship mackerel at that port. Secondly, condition 9 provided that mackerel might be landed or transhipped only at ports designated and named in the licence or at such other ports as may be specified by a senior sea fisheries protection officer.

4 3. The applicant was charged with two offences alleging that on or about the 19th April, 2001, he violated the terms of 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. The applicant pleaded not guilty to both charges. In both instances the violation of the licence condition was alleged to be in contravention of article 3(10) of the order and s. 223A of the Act of 1959 (as amended). The applicant was returned for trial to the Circuit Court in Tralee.

5 4. These judicial review proceedings were then brought by the applicant. The applicant sought, inter alia, an injunction by way of an application for judicial review restraining the first named respondent from prosecuting the alleged offences of which the applicant is accused and charged. He also sought a declaration that two articles in the order relating to the two conditions in the fishing licence are ultra vires and exceed the jurisdiction of s. 223A of the Fisheries (Consolidation) Act, 1959(as inserted by s.9 of the Fisheries (Amendment) Act, 1978and amended by s.4 of the Fisheries (Amendment) Act, 1983).

6 5. The issue before the High Court was whether the Minister had the power to make the order and impose the conditions on the applicant's licence as purported to have been done.

7 The High Court held:

" In all the circumstances I will allow the application of the applicant in light of the limited basis set forth in the amended statement of grounds, by making a declaration that the Mackerel (Licensing) Order, 1999, is ultra vires the powers of the respondents herein pursuant to s. 223A of the Fisheries (Consolidation) Act, 1959, (as inserted by s.9 of the Fisheries (Amendment) Act, 1978, and amended by s.4 of the Fisheries (Amendment) Act, 1983) on the ground at paragraph 11B of the Amended Statement namely that the respondents have acted ultra vires in purporting to implement Council Regulation (EC) No. 2847/93 of 12th October, 1993, as amended by Council Regulation (EC) No. 2846/98 of 17th December, 1998, by purporting to promulgate the Mackerel (Licensing) Order, 1999, allegedly pursuant to s. 223A of the Fisheries (Consolidation) Act, 1959."

6. Grounds of Appeal

8 The respondent filed grounds of appeal, appealing on the basis that the learned High Court judge erred in law:

9 (i) In holding that the Order was directed to implementing Community policy, notwithstanding the finding (hereinafter referred to as "the finding") that the provisions constituted a measure of conservation of fish stocks and of rational exploitation of fisheries within the meaning of section 223A;

10 (ii) In holding that the Order fell within the terms of the Common Fisheries Policy, notwithstanding the finding;

11 (iii) In holding that the Order was made essentially in the context of the Common Fisheries Policy, notwithstanding the finding;

12 (iv) In holding that the respondents implemented Council Regulation (EC) No. 2847/93 of 12th October 1993, as amended by Council Regulation (EC) No. 2846/98 of 17th December 1998 by promulgating the Order;

13 (v) In holding that the Minister acted ultra vires by making the Order, notwithstanding the finding;

14 (vi) In failing to hold that in exercising the residual power of the State to manage and conserve the resources of the sea the Minister was entitled to make the Order.

7. The Law

15 7.1 First and foremost there is...