McDaid v Judge Sheehy

• Jurisdiction: Ireland
• Judge: Justice Blayney
• Judgment Date: 18 January 1989
• Neutral Citation: 1989 WJSC-HC 513
• Court: High Court
• Date: 18 January 1989

1989 WJSC-HC 513

THE HIGH COURT

NO. 21C OF 1988

McDAID v. SHEEHY

JUDICIAL REVIEW

BETWEEN :

CHARLES McDAID

APPLICANT

AND

HIS HONOUR JUDGE DAVID SHEEHY S.C., THE DIRECTOR OF PUBLIC PROSECUTIONS, THE GOVERNMENT OF IRELAND, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Synopsis:

CONSTITUTION

Statute

Validity - Government - Excise duties - Imposition - Wide discretionary powers conferred by enactment on Government - Enactment constituting unlawful delegation of legislative power of the State - Enactment invalid - ~See~ Constitution, legislation - (1988/210 JR - Blayney J. - 18/1/89) - [1991] 1 I.R. 1

|McDaid v. Sheehy|

STATUTORY INTERPRETATION

Legislature

Legislature - Intention - Implementation - Invalid order - Order subsequently "confirmed" by enactment - Enactment interpreted as validating contents of order from date of enactment - ~See~ Constitution, legislation - (1988/210 JR - Blayney J. - 18/1/89)

|McDaid v. Sheehy|

WORDS AND PHRASES

"Confirmed"

Statute - Interpretation - Legislature - Intention - Implementation - Invalid order - Order subsequently confirmed by enactment - Enactment interpreted as validating contents of order from date of enactment - ~See~ Constitution, legislation - (1988/210 JR - Blayney J. - 18/1/89) - [1991] 1 I.R. 1

|McDaid v. Sheehy|

CONSTITUTION

Legislation

Oireachtas - Exclusive function - Delegated legislation - Validity - Customs and excise duties imposed by Government order - Order made pursuant to powers conferred by statute - Unlawful delegation of legislative power - Government order invalid - Subsequent confirmation of order by statute - Effect of subsequent confirmation - Article 15, s. 2, of the Constitution states:- "1. 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. 2. Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures" - On 12/6/86 the applicant was convicted in the District Court of an offence committed on 15/12/84 contrary to s. 21 sub-s. 8(a), of the Act of 1935; he was ordered to pay a fine of #1,000 - The offence with which the applicant had been charged was that he had kept in the fuel tank of a specified motor vehicle hydrocarbon oil, chargeable with excise duty under para. 12(1) of the Order of 1975, on which the said excise duty had not been paid or on which a rebate had been allowed - The Order of 1975 was made by the Government on 16/12/75 in exercise of the powers conferred on them by s. 1 of the Act of 1957 - Section l(d) of the Act of 1957 states:- "The Government may by order ... (d) impose, whether with or without qualifications, limitations, allowances, exemptions, or preferential rates, an excise duty on any particular matter or thing as from any specified day and, for the purpose of the duty, require the taking out of a licence for the doing of any particular thing" - Paragraph (e) of s. 1 gives the Government power to terminate or vary any excise duty or any such provision relating thereto and paragraph (j) gives the government power to revoke or amend any order made pursuant to paragraph (d) - Section 2, sub-s. 1, of the Act of 1957 states that every order made under s. 1 of the Act shall have statutory effect upon the making therof and, unless "the order is confirmed by Act of the Oireachtas" passed not later than the end of the year following that in which the order is made or is merely an order revoking a previous order, the order made under s. 1 shall cease to have statutory effect at the expiration of that period, but without prejudice to the validity of anything previously done thereunder - Section 46 of the Act of 1976 states:- "The Orders mentioned in the table to this section are hereby confirmed" - The Order of 1975 was one of the orders mentioned in the said table - On 29/2/88 the respondent judge of the Circuit Court dismissed an appeal by the applicant against his conviction - Having obtained leave, the applicant applied to the High Court for an order of certiorari quashing his conviction on the ground that the excise duty mentioned in the charge had been imposed by the Order of 1975, which order was made on the authority of an invalid delegation by the Oireachtas of its exclusive legislative power contrary to Article 15, s. 2, of the Constitution - Held that the said provisions of s. 1 of the Act of 1957 were an unlawful delegation of the legislative power of the State and, accordingly, were invalid having regard to the provisions of Article 15, s. 2, of the Constitution: ~Pigs Marketing Board v. Donnelly (Dublin) Ltd~ [1939] I R. 413 and ~Cityview Press Ltd v. An Chomhairle Oiliuna~ [1980] I.R. 381 considered - Held that the Order of 1975, being authorised by such invalid delegation, was also invalid when made on 16/12/75 - Held that it was clear that, in enacting s. 46 of the Act of 1976, the Oireachtas intended to give legislative effect to the contents of the Order of 1975 - Held that the terms of s. 46 of the Act of 1976 were capable of being construed so as to give effect to that intention and that s. 46 should be construed as validating the contents of the Order of 1975: ~Nestor v. Murphy~ [1979] I.R. 326, ~Luke v. Inland Revenue Commissioners~ [1963] A.C. 557 and ~Doyle v. An Taoiseach~ [1986] ILRM 693 considered - Held, accordingly that the respondent judge acted correctly in dismissing the applicant's appeal - Imposition of Duties (No. 221) (Excise Duties) Order, 1975, para. 12 - Finance Act, 1935, s. 21 - Imposition of Duties Act,1957, s. 1 - Finance Act, 1976, s.46 - Constitution of Ireland, 1937, Article 15 - (1988/210 JR - Blayney J. - 18/1/89) - [1991] 1 I.R. 1

|McDaid v. Sheehy|

1 Justice Blayney delivered the 18TH day of January 1989.

2 This application for Judicial Review raises for consideration an important issue of constitutional law, namely, whether the Imposition of Duties Act 1957is invalid having regard to the provisions of the Constitution.

3 The issue arises in this way. The Applicant was not on the 12th day of June 1986, at a sitting of the District Court at Buncrana, County Donegal, convicted of an offence under Section 21 (8) (a) of the Finance Act 1935and fined £1,000. He appealed to the Circuit Court and on the 29th day of February 1988 his appeal was dismissed by the learned Circuit Court Judge, the first named Respondent. The offence for which the Applicant was summoned was that he did "on the 15th day of December 1984 at Tievebane, Burnfoot, Lifford, in the County of Donegal contravene Section 21 (8) (a) of the Finance Act 1935 as amended by Section 20 (3) of the Finance Act 1960by keeping in the fuel tank of motor vehicle Registration Number HVI 962 hydrocarbon oil chargeable with a duty of excise under paragraph 12 (1) of the Imposition of Duties (No. 221) (Excise Duties) Order 1975 as amended by Section 70 (12) of the Finance Act 1980on which a rebate of duty had been allowed under paragraph 12 (3) of the said Order, contrary to Section 21 (12) of the Finance Act 1935as amended by Section 18 of the Finance Act 1940, Section 8 of the Finance Act 1942, Section 20 of the Finance Act 1960, Section 104 and the Sixth Schedule part III of the Finance Act 1963, Section 19 of the Finance Act 1964, Section 43 of the Finance Act 1983."

4 Section 21 (8) (a) of the Finance Act 1935as amended by Section 30 (3) of the Finance Act 1960is as follows:-

"No person shall, on or after the 1st July 1935 -"

5 (8) Use for combustion in the engine of a motor vehicle of keep in the fuel tank of such vehicle any hydrocarbon oil (chargeable with either the said customs duty or the said excise duty) on which neither of the said duties has been paid or on which a rebate under this Section has been allowed ....."

6 The Customs and Excise duties referred to were imposed by subsections (1) and (3) of Section 21 of the Finance Act 1935which subsections were repealed by paragraph 22 (1) of the Imposition of Duties (No. 221) (Excise Duties) Order 1975 ( S.I. No. 307 of 1975) (hereinafter referred to as the 1975 Order) but were replaced by paragraph 12 (1) of the 1975 Order. Paragraph 12 (1) as amended by Section 70 (12) of the Finance Act 1980is as follows:-

"In addition to any other duty which may be chargeable there shall be charged, levied and paid a duty of excise at the rate of £0.1773 per gallon on all hydrocarbon oil produced or manufactured in the State and not otherwise liable to a duty of excise which is sent out, on or for sale or otherwise, from the premises of the manufacturer thereof or is used by such manufacturer for any purpose other than the manufacture or production of hydrocarbon oil and on all hydrocarbon oil imported into the State and not otherwise liable to a duty of excise; provided, however, that mineral hydrocarbon heavy oils within the meaning of Section 7 (6) of the Finance Act, 1933(No. 15 of 1933) shall not be chargeable with the said duty."

7 Subparagraph (13) of paragraph 12 of the 1975 Order further provides (inter alia) that subsection (8) of Section 21 of the Finance Act 1935shall with any necessary modifications apply in relation to the duty of excise imposed by paragraph 12 (1) of the 1975 Order. The effect of these provisions of the 1975 Order was that subsection 8 (a) of Section 21 of the Finance Act 1935was now to be read as providing that "No person shall on or after the 1st July 1935 use for combustion in the engine of a motor vehicle or keep in the fuel tank of such vehicle any hydrocarbon oil chargeable with excise duty under paragraph 12 (1) of the 1975 Order on which the said duty has not been paid or on which a...