McInerney v Minister for Agriculture

JurisdictionIreland
JudgeMr. Justice Morris
Judgment Date12 October 1995
Neutral Citation1995 WJSC-HC 4995
Date12 October 1995
CourtHigh Court
Docket NumberNo. 5574P/1993,[1993 No. 5574P]

1995 WJSC-HC 4995

THE HIGH COURT

No. 5574P/1993
MCINERNEY v. MIN AGRICULTURE

BETWEEN

LEO McINERNEY
PLAINTIFF

AND

THE MINISTER FOR AGRICULTURE FOOD AND FORESTRY IRELAND ANDTHE ATTORNEY GENERAL
DEFENDANTS

Citations:

ABATTOIRS ACT (ABATTOIRS) REGS 1989 SI 152/1989 PART II

ABATTOIRS ACT 1988 S20

ABATTOIRS ACT 1988 S61

INTERPRETATION ACT 1937 S10(1)(b)

ABATTOIRS ACT 1988 S11

ABATTOIRS ACT (ABATTOIRS) REGS 1989 SI 152/1989 PART III

ABATTOIRS ACT 1988 S17

ABATTOIRS ACT 1988 S10

MCCOLGAN, STATE V DPP & CLIFFORD 1980 ILRM 75

ROAD TRAFFIC (AMDT) ACT 1978

ABATTOIRS ACT 1988 S21

INTERPRETATION ACT 1937 S10(1)

Synopsis:

MINISTER OF STATE

Powers

Exercise - Regulations - Creation - Order - Validity - Statutory instrument - Instrument regulated operation of abattoirs - Instrument made by Minister before relevant Act became operative - Instrument stated to be made pursuant to several sections of Act - Sections of Act and articles of instrument not correlated - Whether necessary or expedient to make regulations before activation of statute - (1993/5574 P - Morris J. - 12/10/95)1995 3 IR 449

|McInerney v. Minister for Agriculture, Food and Forestry|

WORDS AND PHRASES

"Expedient"

Regulations - Creation - Time - Statute - Minister's power to make regulations - Statutory instrument - Instrument regulated operation of abattoirs - Instrument made by Minister before relevant Act became operative - Instrument stated to be made pursuant to several sections of Act - Sections of Act and articles of instrument not correlated - Whether necessary or expedient to make regulations before activation of statute - (1993/5574 P - Morris J. - 12/10/95) - [1995] 3 I.R. 449

|McInerney v. Minister for Agriculture, Food and Forestry|

STATUTE

Powers

Regulations - Creation - Method - Validity - Minister of State - Statutory instrument - Instrument regulated operation of abattoirs - Instrument made by Minister before relevant Act became operative - Instrument stated to be made pursuant to several sections of Act - Sections of Act and articles of instrument not correlated - Whether necessary or expedient to make regulations before activation of statute - Abattoirs Act, 1988, ss. 2, 17, 20, 61 - (1993/5574 P - Morris J. - 12/10/95) - [1995] 3 I.R. 449

|McInerney v. Minister for Agriculture, Food and Forestry|

1

Judgment of Mr. Justice Morrisdelivered the 12th day of October, 1995.

2

By Order of the 27th of July, 1993 the Plaintiff was, inter alia, given liberty to apply by way of Judicial Review for a Declaration that the Abattoirs Act (Abattoirs) Regulations, 1989 (S.I. No. 152 of 1989) are ultra vires the Abattoirs Act, 1988(No. 8 of 1988) on the grounds set out at paragraph F of the statement filed with the said application.

3

The circumstances in which the Plaintiff seeks this relief can be summarised as follows:-

4

The Plaintiff is a butcher by occupation and now resides at Kilrush, County Clare. When he moved to Kilrush from County Tipperary he attempted on a number of occasions to obtain a permit, under the then relevant legislation, to operate an abattoir in or near Kilrush, but was refused. On a date which is not clear but late 1989 he agreed to purchase an existing purpose-built abattoir from a Mr. William Longworth and the sale was duly completed. During the timethat this acquisition was in progress the Abattoirs Act, 1988was passing through Dail Eireann. This Act was passed on 3rd April, 1988. However it did not come into operation immediately on its passing. In so far as is relevant to these proceedings, the relevant sections of the Act came into force on the 1st September, 1989.

5

Approximately two months prior to that date on the 22nd June, 1989 the Minister for Agriculture in exercise of the powers conferred on him by Sections 20 and 61 of the Abattoirs Act of 1988made the (Abattoirs) Regulations, 1989 (S.I. 152 of 1989) and they came into force on that date.

6

The Plaintiff who has continued to use his abattoir has been summoned in respect of five alleged infringements of these regulations and he now seeks an Order striking down these regulations on the grounds that the Minister in purporting to make these regulations acted ultra vires his powers under the Abattoirs Act of 1988.

7

Two grounds have been advanced on the Plaintiff's behalf and they can be summarised as follows:-

8

(a) It is submitted on behalf of the Plaintiff that since the enabling enactment was not in force at the relevant time and did not come into force until approximately two months after the Minister purported to exercise his power under the Act, the Minister had no power to make these regulations.

9

(b) Whilst it is accepted that both Sections 20 and 61 empower the Minister to make regulations, it is submitted that non-compliance with the terms ofSection 20 of the Act constitutes a criminal offence whereas non-compliance with the terms of Section 61 does not. In so far therefore as the Minister has sought to rely upon both of these sections in the making of the regulations there is uncertainty and by applying the strict construction necessary it is alleged that the Court should declare the Minister's conduct ultra vires.

10

As to the first point. As the regulations were made prior to the coming into operation of the Act they are, in my view, valid only if the circumstances in the case come within the terms of Section 10(1)(b) of the Interpretation Act, 1937which reads:-

"10(1) Where an Act of the Oireachtas or any particular enactment contained in any such Act is expressed to come into operation on a day subsequent to the date of the passing of such Act the following provisions shall have effect, that is to say"

(a) .....

(b) if such Act confers a power to make or do for the purposes of such Act or...

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