McDaid v Sheehy

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,McCarthy J.
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-SC 2655
• Court: Supreme Court
• Docket Number: [S.C. Nos. 53 and 54 of 1989],53/89
• Date: 01 January 1991

1990 WJSC-SC 2655

THE SUPREME COURT

Finlay C.J.

Griffin J.

Hederman J.

McCarthy J.

O'Flaherty J.

53/89

54/89

MCDAID v. SHEEHY

BETWEEN

CHARLES McDAID

Applicant/

Appellant

v.

HIS HONOUR JUDGE DAVID SHEEHY & ORS.

Respondent/

Respondents

Citations:

FINANCE ACT 1935 S21(8)(a)

IMPOSITION OF DUTIES ACT 1957 S1

IMPOSITION OF DUTIES ACT (NO 221) (EXCISE DUTIES) ORDER 1975 SI 307/1975

CONSTITUTION ART 15(2)(1)

FINANCE ACT 1976 S46

IMPOSITION OF DUTIES ACT 1957 S2

BUCKLEY & ORS (SINN FEIN) V AG & ANOR 1950 IR 67

ROCHE V MIN FOR INDUSTRY & COMMERCE 1978 IR 149

MINERALS DEVELOPMENT ACT 1940 S14

M & M V BORD UCHTALA 1977 IR 287

COOKE V WALSH 1984 IR 710

MURPHY V ROCHE 1987 IR 106

MCDONALD V BORD NA GCON & AG 1964 IR 350

MCDONALD V BORD NA GCON (NO 2) 1965 IR 217

ASHWANDER V TENNESSEE VALLEY AUTHORITY 297 US 287

HARVEY V MIN FOR SOCIAL WELFARE & AG 1990 ILRM 185

GARVEY V IRELAND 1981 IR 75

ADOPTION ACT 1952

POLICE FORCES AMALGAMATION ACT 1925 S6(2)

Synopsis:

CONSTITUTION

Legislation

Oireachtas - Exclusive function - Delegated legislation - Validity - Customs and excise duties imposed by Government order - Order made pursuant to powers conferred by statute - Delegation of legislative power - Whether Government order invalid - Confirmation of order by subsequent enactment of Oireachtas - Effect of subsequent confirmation - Imposition of Duties (No.221) (Excise Duties) Order, 1976, para. 12 - Imposition of Duties Act, 1957, s. 1 - Finance Act, 1976, s. 46 - Constitution of Ireland, 1937, Article 15 - (53, 54/89 - Supreme Court - 5/12/90)1991 1 IR 1

|McDaid v. Sheehy|

CONSTITUTION

Statute

Validity - Issue - Determination - Necessity - Absence - Practice of Courts - Refusal to determine issue - (53, 54/89 - Supreme Court - 5/12/90) - [1991] 1 I.R. 1 - [1991] ILRM 250

|McDaid v. Sheehy|

ORDER

Validity

Absence - Provisions - Ratification - Subsequent enactment - Government order imposing excise duty - (53, 54/89 - Supreme Court - 5/12/90) - [1991] 1 I.R. 1 - [1991] ILRM 250

|McDaid v. Sheehy|

STATUTORY INTERPRETATION

Legislature

Intention - Implementation - Invalid order - Confirmation of order by subsequent enactment - Enactment interpreted as validating contents of order from date of enactment - (53, 54/89 - Supreme Court - 5/12/90) - [1991] 1 I.R. 1 - [1991] ILRM 250

|McDaid v. Sheehy|

WORDS AND PHRASES

"Confirmed"

Statute - Interpretation - Legislature - Intention - Implementation - Invalid order - Confirmation of order by subsequent enactment - Enactment interpreted as validating contents of order from date of enactment - (53, 54/89 - Supreme Court - 5/12/90) - [1991] 1 I.R. 1 - [1991] ILRM 250

|McDaid v. Sheehy|

1 JUDGMENT delivered on the 5th day of December 1990by FINLAY C.J. [GRIFFIN, HEDERMAN, O'FLAHERTY CONC]

2 This is an appeal brought by the Applicant against an Order made in the High Court by Blayney J. on the 23rd January 1989.

3 The proceedings brought by the Applicant were proceedings for judicial review in which there was sought

4 (a) an Order of Certiorari of the Order of the first-named Respondent made on the 29th Feburary 1988 dismissing the Applicant's appeal and affirming a conviction in the District Court made on the 12th June 1986 for an offence contrary to Section 21(8)(a) of the Finance Act 1935as amended;

5 (b) a declaration by way of judicial review that the provisions of Section 1 of the Imposition of Duties Act 1957as amended are invalid having regard to the provisions of theConstitution;

6 (c) a declaration that the provisions of the Imposition of Duties Act (No. 221) Excise Duties Order 1975 are invalid having regard to the provisions of the Constitution.

7 The learned trial Judge held that part of Section 1 of the Act of 1957 was invalid having regard to the provisions of the Constitution in that it provided for an impermissibly wide delegation of power in breach of Article 15(2)(1) of the Constitution, but held that theApplicant was not entitled to the Order of Certiorari sought by reason of the fact that the provisions of the Imposition of Duties Order 1975 relevant to the offence with which the Applicant was charged had been confirmed and re-enacted by subsequent legislation, viz. Section 46 of the Finance Act 1976which provided:

"The Orders mentioned in the table to this section are herebyconfirmed."

8 One of the Orders mentioned was the 1975 Order.

9 The learned trial Judge reached the conclusion that it was the intention of the Oireachtas that the Order should be part of the law of the State. The confirmation of the Order was a clear expression of that intention. At the time it was believed that the Order was valid but that confirmation was necessary so that it would continue to have statutory force after the end of 1976. It would have ceased to have effect at the end of that year if it were not confirmed. So, the learned Judge held, the intention in confirming it was to give it the status of a permanent statutory provisionderiving its validity as from the end of 1976 from Section 46 of the Finance Act 1976.

10 He, accordingly, dismissed the Applicant's claim for judicialreview.

11 The Applicant appealed against that dismiss in so far as it consisted of a decision that he was not entitled to an Order of Certiorari. The Respondents appealed against the finding in the High Court that Section 1 of the Act of 1957 was invalid having regard to the Constitution and against the finding that consequently the Imposition of Duties Order 1975 was also invalid.

12 Upon the hearing of the appeal the Court first heard arguments on behalf of the Attorney General on the the challenge to the constitutional validity of Section 1 of the Imposition of Duties Act 1957, having regard to the fact that it had been held in the High Court that the said Section of the Act was invalid.

13 I am satisfied that the learned High Court Judgewas correct in holding that the 1976 Act gave validity to the Order as from the end of 1976 and, therefore, at all material times to this litigation the Order was of full force and effect.

14 Having regard to this view, the issue is as to whether it was necessary for the learned trial Judge to pronounce on the constitutional validity of Section 1 of the Imposition of Duties Act 1957and, if it was not, whether it would be appropriate for this Court to pronounce on it either.

The impugned statutory provisions

15 Sections 1 and 2 of the Imposition of Duties Act 1957as amended by Section 46 of the Finance Act 1975read as follows:

"1. - The Government may by Order:"

(a) impose, whether with or without qualifications, limitations, drawbacks, allowances, exemptions, or preferential rates, and as from any specified day, a customs duty of such amount as they think proper on any particular description of goods imported into the State and, where the goods are chargeable with any other customs duty, so impose the first-mentioned dutyeither in addition to or in substitution for the other duty;

(b) terminate or vary in any manner or respect whatsoever, and as from any specified day, in regard to goods imported into the State any customs duty in force at the passing of this Act or imposed by any Act passed or order made after the passing of this Act or any qualification, limitation, drawback, allowance, exemption, or preferential rate in force at the date of the order in relation to any such duty;

(c) limit any such imposition, termination or variation to goods consigned from or grown, produced, or made in particular countries;

(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;

(e) terminate or vary in any manner or respect whatsoever and as from any specified day any excise duty in force at the passing of this Act or imposed by any Act passed or order made after the passing of this Act, or any qualification, limitation, allowance, exemption, or preferential rate in force at the date of the order in relation to any such duty;

(ee) where a customs duty on goods of any particular description -

(i) is terminated by the order and, in theopinion of the Government, the whole of the duty was of a fiscal nature or there was a fiscal element in the duty, or

(ii) is varied by the substitution for the rate at which the duty was chargeable of another such rate and there was, in the opinion of the Government, a fiscal element in the duty before such variation and the substituted rate is equal to the rate for which it was substituted less so much thereof as, in the opinion of the Government was the fiscal element in the duty,

16 impose, whether with or without qualifications, limitations, drawbacks, allowances, exemptions or preferential rates, and as from any specified day, on goods of that particular description imported into the State an excise duty at a rate equal -

17 (I) if, in the opinion of the Government, the whole of the customs duty was of a fiscal nature, to the rate of such duty, and

18 (II) if, in the opinion of the Government, there was a fiscal element in the customs duty, to the part of the rate of such duty that, in the opinion of the Government, was the fiscal element therein,

19 and the reference in paragraph (e) of this section to any excise duty and in paragraphs (h) and (i) of this section to any duty shall be construed as including references to any duty imposed under this paragraph and a duty imposed under this paragraph shall be deemed, for the purposes of the said paragraph (h), to be a customs duty and an excise duty;

20 (f) impose, whether with or without qualifications, limitations, allowances, exemptions, or preferential rates, a stamp duty on any particular description of document or transaction as from any specified day and, for the...