Meagher v Minister for Agriculture

• Jurisdiction: Ireland
• Judgment Date: 01 January 1994
• Date: 01 January 1994
• Docket Number: [1992 262 J.R.]
• Court: Supreme Court

Meagher v. Minister for Agriculture

John Meagher

Applicant

and

The Minister for Agriculture and Food, Ireland and The Attorney General, Respondents

[1992 262 J.R.]

High Court

Supreme Court

Supreme Court

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.

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. 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 1988 provides that a judge of the District Court or Peace Commissioner may issue a search warant where he is satisfied by information on oath of an authorised officer, a member of An Garda Síochána or an officer of Customs and Excise that there is reasonable ground for suspecting that, inter alia, a person is in possession of a substance prohibited under the regulation.

The applicant was a farmer. On the 27th March, 1991, officers from the Department of Agriculture and members of An Garda Síochána conducted a search of the applicant's dwellinghouse, lands and farm buildings on foot of a search warrant granted on the 26th March, 1991, by a judge of the District Court pursuant to art. 16 of the Regulations of 1988. In the course of the search a quantity of veterinary medical products was seized, and the applicant made a statement under caution admitting ownership of the material.

On the 24th August, 1992, the applicant was served with summonses issued on foot of complaints made on the 31st July, 1992, charging him with offences under the Regulations of 1988 and 1990. The applicant brought judicial review proceedings seeking,inter alia, a declaration that the provisions of s. 3 of the Act of 1972 were invalid having regard to the provisions of the Constitution of Ireland, 1937, and void, together with a declaration that the Regulations of 1988 and 1990 were, in consequence, ultra vires.

In the High Court, it was not in issue that the impugned articles of the Regulations of 1988 and 1990 amended the law. It was submitted on behalf of the applicant that s. 3, sub-s. 2 of the Act of 1972 was invalid having regard to the provisions of Article 15 of the Constitution insofar as it permitted a Minister by regulation to amend existing law, and that the Regulations, in consequence, were ultra vires the Minister and void.

On behalf of the respondents it was conceded that ordinarily, any statute authorising a Minister to amend law by way of delegated legislation would be an impermissible delegation of the legislative powers of the Oireachtas. It was submitted that in the instant case, however, the impugned regulations constituted acts done or measures adopted by the State necessitated by the obligations of membership of the European Communities, and that they could not, accordingly, be invalidated by any provision of the Constitution. It was further submitted that it was open to a Minister charged with implementing a directive of the European Communities to choose whether to do so by way of statute or subordinate legislation.

Held by Johnson J., in declaring that such portion of s...