Meagher v Minister for Agriculture

JurisdictionIreland
CourtSupreme Court
Judgment Date01 Jan 1994
Docket Number[1992 262 J.R.]

High Court

Supreme Court

Supreme Court

[1992 262 J.R.]
Meagher v. Minister for Agriculture
John Meagher
Applicant
and
The Minister for Agriculture and Food, Ireland and The Attorney General, Respondents

Case mentioned in this report:—

Buckley and others (Sinn Fein) v. Attorney General and anor.IR [1950] I.R. 67.

Campus Oil v. Attorney GeneralIR [1983] I.R. 82.

Cityview Press v. An Chomhairle OiliúnaIR [1980] I.R. 381.

Cooke v. WalshIRDLRMDLRM [1984] I.R. 710; [1983] I.L.R.M. 429; [1984] I.L.R.M. 208.

East Donegal Co-Operative Livestock Mart Ltd. v. Attorney GeneralIRDLTR[1970] I.R. 317; (1970) 104 I.L.T.R. 81.

Francovich v. ItalyECASUNKUNK Case C-6/90 [1991] E.C.R. 1-5357; [1993] 2 C.M.L.R. 66.

Greene v. Minister for AgricultureIR [1990] 2 I.R. 17.

Harvey v. The Minister for Social WelfareIRDLRM [1990] 2 I.R. 232; [1990] I.L.R.M. 185.

Lawlor v. Minister for AgricultureIR [1990] I.R. 356.

Marleasing S.A. v. La Commercial Internacional de Alimentacion S.A.ECASUNKUNK (Case C-106/89) [1990] E.C.R. 1-4135; [1992] 1 C.M.L.R. 305.

McDaid v. Judge SheehyIRDLRMDLRM [1991] 1 I.R. 1; [1989] I.L.R.M. 342 (H.Ct.); [1990] I.L.R.M. 250 (S.Ct.).

Maher v. Attorney GeneralIR [1973] I.R. 147.

Quinn's Supermarket v. Attorney GeneralIR [1972] I.R. 1.

Officer van Justitie v. Kolpinghuis NijmegenECASUNKUNK (Case 80/86) [1987] E.C.R. 3969; [1989] 2 C.M.L.R. 18.

RoyerECASUNKUNK (Case 48/75) [1976] E.C.R. 497; [1976] 2 C.M.L.R. 619.

Constitution - Legislation - Oireachtas - Exclusive function - Statute permitting the amendment of existing law by ministerial order - Whether impermissible delegation of legislative power - Delegated legislation - Validity - Statute providing that regulations made thereunder to have statutory effect unless nullified by motion of the Dáil and Seanad - Whether infringement of exclusive legislative power of the Oireachtas - European Communities (Control of Oestrogenic, Androgenic, Gestagenic and Thyrostatic Substances) Regulations, 1988 (S.I. No. 218), art. 16, para. 2 and art 32, para. 8 - European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1990 (S.I. No. 171), art. 11, para. 4 - Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict., c. 93), s. 10, sub-s. 4 - European Communities Act, 1972 (No. 27), s. 2, s. 3, sub-ss. 1 and 2 and s. 4, sub-s. 1 (a) and (b) - Constitution of Ireland, 1937, Article 15, s. 2 and Article 29, s. 4, sub-ss. 3, 4 and 5 - Council Directive 85/358/E.E.C., arts. 1, 3 and 6 - European Economic Community Treaty, 1957, Article 189.

European Communities - Directive - Implementation - Choice of form and methods - Ministerial regulation - Whether implementation by ministerial regulation necessitated by obligations of membership of European Communities - Supremacy of Community law - European Communities (Control of Oestrogenic, Androgenic, Gestagenic and Thyrostatic Substances) Regulations, 1988 (S.I. No. 218) - European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1990 (S.I. No. 171), European Communities Act, 1972 (No. 27), ss. 2 and 3, sub-ss. 1 and 2 - Constitution of Ireland, Article 15, s. 2 and Article 29, s. 4, sub-s. 5 - Council Directive 85/358/E.E.C., arts. 1, 3 and 5 - European Economic Treaty, 1957, Article 189.

Judicial Review.

The relevant facts are set out in the headnote. On the 31st August, 1992, the applicant was given leave by the High Court (Johnson J.) to apply by way of judicial review for:—

  1. (a) a declaration that the European Communities (Control of Oestrogenic, Androgenic, Gestagenic and Thyrostatic Substances) Regulations, 1988 and the European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1990 were ultra vires and void;

  2. (b) a declaration that the provisions of s. 3, sub-ss. 1 and 2 of the European Communities Act, 1972, were invalid having regard to the provisions of the Constitution of Ireland, 1937;

  3. (c) an order of certiorari quashing a search warrant purportedly granted by a Judge of the District Court on the 26th March, 1991, and

  4. (d) an order of prohibition and/or injunction restraining the first defendant from prosecuting the applicant in respect of 20 summonses served upon him on the 24th August, 1992.

The application, which was brought by notice of motion dated the 7th September, 1992, was heard by the High Court (Johnson J.) on the 23rd February, 1993.

The respondents appealed to the Supreme Court by way of notice of appeal dated the 26th April, 1993. The appeal was heard by the Supreme Court (Finlay C.J., O'Flaherty, Egan, Blayney and Denham JJ.) on the 6th and 7th July, 1993.

Article 15, s. 2 of the Constitution of Ireland, 1937, provides that:—

"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."

Article 29, s. 4, sub-s. 5 of the Constitution of Ireland, 1937, provides:—

"No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof . . . from having the force of law in the State."

Article 189, para. 3 of the European Economic Community Treaty, 1957, provides:—

"A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods."

Section 2 of the European Communities Act, 1972, provides:—

"From the 1st day of January, 1973, the treaties governing the European Communities and the existing and future acts adopted by the institutions of those Communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties."

Section 3, sub-ss. 1 and 2 of the Act of 1972 provides:—

"(1) A Minister of State may make regulations for enabling section 2 of this Act to have full effect.

(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act)."

Section 4, sub-s. 1 of the Act of 1972, as inserted by s. 1 of the European Communities (Amendment) Act, 1973, provides:—

"(a) Regulations under this Act shall have statutory effect.

(b) If the Joint Committee on the Secondary Legislation of the European Communities recommends to the Houses of the Oireachtas that any regulations under this Act be annulled and a resolution annulling the regulations is passed by both such Houses within one year after the regulations are made, the regulations shall be annulled accordingly and shall cease to have statutory effect, but without prejudice to the validity of anything previously done thereunder."

Article 1 of Council Directive 85/358/EEC of the 16th July, 1985, supplementing Directive 81/602/EEC concerning the prohibition of certain substances having a hormonal action and of any substances having a thyrostatic action provides, inter alia:—

"Member States shall ensure that official on-the-spot random controls are made on [certain veterinary pharmaceutical preparations and other substances] . . . for the presence of prohibited substances . . . which may be intended to be administered to animals for fattening purposes."

Article 3 of the Directive of 1988 provides:—

"Member States shall ensure that:—"

  1. 1. where there is justified suspicion of an infringement, the competent departments make or arrange to have made:—

    • - random controls on animals on their farms of origin, particularly in order to detect traces of implants,

    • - an official control for the presence of the substances the use of which is prohibited on farms where animals are reared, kept or fattened,

    • such controls may include the official taking of samples;

2. random samples are taken from animals from fattening farms."

Article 6 of the Directive of 1988 provides, inter alia, that where analysis of samples taken in accordance with the provisions of art. 3 confirms the presence of the prohibited substances, the competent authority shall ensure that an investigation shall be carried out at the farm of origin to determine the reason for the presence of the said substances.

Section 10, sub-s. 4 of the Petty Sessions (Ireland) Act, 1851, provides that, with certain exceptions, complaints in relation to summary offences must be brought within six months of the date of the commission of the offence.

The European Communities (Control of Oestrogenic, Androgenic, Gestagenic and Thyrostatic Substances) Regulations, 1988 and the European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1990 were made for the purposes of implementing, inter alia, Council Directive 85/358/EEC and was made by the Minister for Agriculture and Food in the exercise of the powers conferred upon him by s. 3 of the Act of 1972. They provide, inter alia, that the possession of certain proscribed veterinary medicines shall be an offence.

Article 32, para. 8 of the Regulations of 1988 provides:—

"Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851 (1851, c. 53), proceedings for an offence under these Regulations may be instituted at any time within two years after the date of the offence."

A provision to the same effect is contained in art. 11, para. 4 of the Regulations of 1990.

Article 16 of the Regulations of...

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