O'Neill v Min for Agriculture & Food, Ireland & Attorney General

• Jurisdiction: Ireland
• Judge: Keane J.,Mr. Justice Francis D Murphy
• Judgment Date: 14 May 1997
• Neutral Citation: 1998 WJSC-SC 11600
• Court: Supreme Court
• Date: 14 May 1997

1998 WJSC-SC 11600

THE SUPREME COURT

Hamilton, C. J.

Keane, J.

Murphy, J.

269/95

O'NEILL v. MIN FOR AGRICULTURE & FOOD, IRELAND & ATTORNEY GENERAL

BETWEEN

OWEN O'NEILL

Applicant

AND

MINISTER FOR AGRICULTURE AND FOOD, IRELAND AND ATTORNEYGENERAL

Respondent

Citations:

LIVE STOCK (ARTIFICIAL INSEMINATION) ACT 1947 S3

TREATY OF ROME ART 86

TREATY OF ROME ART 90

LIVE STOCK (ARTIFICIAL INSEMINATION) ACT 1947 S7

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD V AG 1970 IR 317

CARRIGALINE CO LTD V MIN FOR TRANSPORT 1997 1 ILRM 241

R V PORT OF LONDON AUTHORITY EX PARTE KYNOCH 1919 1 KB 176

BRITISH OXYGEN LTD V MIN FOR TECHNOLOGY 1971 AC 610

MCGEOUGH, STATE V LOUTH CO COUNCIL 1956 107 ILTR 13

MCNAMEE V BUNCRANA UDC 1983 IR 213

LIVE STOCK (ARTIFICIAL INSEMINATION) REGS 1948 SI 55/1948

TREATY OF ROME ART 30

TREATY OF ROME ART 37

TREATY OF ROME ART 85

CONSTITUTION ART 15.2

CITYVIEW PRESS LTD V COMHAIRLE OILIUNA 1980 IR 381

CASSIDY V MIN FOR INDUSTRY & COMMERCE 1978 IR 297

PURCELL V MIN FOR ENVIRONMENT UNREP SUPREME 6.12.95 1996 2 ILRM 153

LIVESTOCK MARTS ACT 1967 S6

AG V WILTSHIRE UNITED DAIRIES 1921 37 TLR 884

Synopsis:

Judicial Review

Challenge to ministerial scheme; control of practice of artificial insemination in cattle; Livestock (Artificial Insemination) Act, 1947; Regulations 1948; licensing system; applicant granted licence to establish an artificial insemination station but refused licence to distribute semen; ministerial policy to grant licences pursuant to a specified area; exclusivity scheme not enacted by regulations; whether scheme ultra vires 1947 Act and/or Art. 86 and 90, Treaty of Rome; presumption of constitutionality; Art. 15.2; policies and principles of the legislation; legitimacy of adopting a policy Held: Appeal allowed; scheme found ultra vires; certiorari and declaratory relief granted (Supreme Court: Hamilton C.J., Keane J., Murphy J. 14/05/1997) [1998] 1 IR 539 - [1997] 2 ILRM 435

O'Neill v. The Minister for Agriculture and Food & Ors.

1 JUDGMENT delivered the 14th day of May, 1997by Keane J. [Hamilton]

2 The factual and legislative background is fully set out in the judgment which will be delivered by Murphy J.

3 Three possible issues arose for resolution in the High Court and this court. First, as to whether the scheme adopted by the first named Defendant (hereafter "the Minister") which crystallised in the arrangement by virtue ofwhich licences were granted on an exclusive basis to nine AI Stations for areas which between them comprised the entire country (and which I shall hereafter refer to as "the exclusivity scheme") was intra vires the Livestock (Artificial Insemination Act 1947(hereafter "the 1947 Act"). If it was not, the claim of the Plaintiff would have to be upheld. If it was, the second issue would arise, i.e. whether the exclusivity scheme could only be implemented by regulations made by the Minister in exercise of the power conferred on him by s. 3 of the 1947 Act. If it could not be implemented in any other way, again the claim of the Plaintiff would have to be upheld. If they action of the Minister in adopting the exclusivity scheme was intra vires the 1947 Act and was properly carried into effect by administrative decisions rather than in the form of regulations made under the 1947 Act, the third question would arise, i.e. as to whether it was nonetheless in contravention of the obligations of the State under the law of the European Union and, in particular, Articles 86 and 90 of the Treaty of Rome.

4 The legislative framework provided by the 1947 Act, as was stressed more than once in the course of argument, is of great simplicity. Section 3 empowers the Minister to make regulations for controlling the practice of AI except under and in accordance with a licence. Section 7 empowers the Minister to issue such licences and to "attach such conditions as he thinks fit"to a licence. Yet however simple, even skeletal, the scheme of the Act may be, there is applicable to it the large corpus of case law which has been built up both in this and the neighbouring jurisdiction as to the legal constraints which affect the exercise of such powers by a person in the position of the Minister.

5 At the outset, it is necessary to bear in mind that the presumption of constitutionality to which the Act is entitled carries with it the corollary, as found by this court in East Donegal Co-operative Livestock Mart Limited & Ors. v. The Attorney General [1970] IR317, that powers such as this must be exercised in accordance with the requirements of the Constitution, including the application, where appropriate, of the rules of natural justice. As Walsh J put it (atp.344):

"[The provisions of the Act] do not give [the Minister] an absolute or an unqualified or an arbitrary power to grant or refuse [licences] at his will. Therefore, he is required to consider every case upon its own merits, to hear what the applicant or the licensee (as the case may be) has to say, and to give the latter an opportunity to deal with whatever case may be though to exist against the granting of a licence or for the refusal of a licence or for the attaching of conditions, or for the amendment orrevocation of conditions which have already attached, as the case maybe."

6 In that case, the court was concerned with a statutory scheme designed to regulate a trade being carried on in particular premises: here we are concerned with a scheme intended to regulate a particular practice, i.e. the artificial insemination of cattle. However, the principle enunciated by Walsh J. in the passage just cited is clearly applicable to the exercise by the Minister of the discretion conferred on him by the 1947 Act to grant or issue licences for the practice of artificialinsemination.

7 Since, the legislation and regulations apart, the practice of artificial insemination of cattle was a lawful one, it would seem primafacie that any person who can satisfy the Minister that he has whatever technical qualifications appear appropriate and is in a position to comply with whatever other requirements might reasonably be imposed on him by the Minister is entitled as a matter of right to a licence. That, however, inevitably raises the question as to whether the Minister, in considering applications for licences under the 1947 Act, was entitled to adopt a particular policy which might mean that applicants, such as the Plaintiff in the present case, who appeared to be in a position to comply with such threshold requirements, would nonetheless notautomatically receive a licence. As to the legitimacy of the Minister's adopting such policy considerations, I venture to repeat what I said in Carrigaline Company Limited v. Minister for Transport, Energy and Communications and Ors. [1997] 1 ILRM 241 at p.284:-

"It is clear that, in the case of at least some licensing regimes, questions of policy cannot play any part. This would be the case, for example, with television reception licences and driving licences, provided that in the latter case certain conditions of eligibility are met. At the other extreme, questions of policy must obviously affect the granting or refusal of planning permission and indeed in that area the authority is obliged by statute to adopt a specific set of policy objectives in the form of a developmentplan."

"The licensing regime established under the 1926 Act as amended by subsequent legislation belongs to an intermediate category. In the case of this and similar licensing regimes, the adoption by the licensing authority of a policy could have the advantage of ensuring some degree of consistency in the operation of theregime, thus making less likely decisions that might be categorised as capricious or arbitrary. But it is also clear that inflexible adherence to such as policy may result in a countervailing injustice. The case law in both this jurisdiction and the United Kingdom illustrates the difficulties involved in balancing these competingvalues."

8 I also cited in that decision this passage from the judgment of Bankes L.J. in R.v. Port of London Authority, Ex Parte Kynoch [1919] 1 KB 176 at p.184:

"There are on the one hand cases where a tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case. I think counsel for the applicants would admit, that if the policy has been adopted for reasons which the tribunal may legitimately entertain, no objection could be taken to such a course. On the other hand there are cases where a tribunal haspassed a rule or come to a determination not to hear any application of a particular character by whomsoever made. There is a wide distinction to be drawn between these two classes."

9 The legitimacy of adopting a policy was also recognised by the House of Lords in British Oxygen Limited v. Minister of Technology [1971] AC 610 where Lord Reid said:

"What the authority must not do is to refuse to listen at all. But a ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say - of course I do not mean to say that there need be an oral hearing."

10 Similar principles have been adopted by the Irish courts in cases such as The State (McGeough) v. Louth County Council [1956] 107 ILTR13 and McNamee v. Buncrana UDC [1983] IR 213.

11 Now let us consider what happened in this case. While the Applicant was granted a licence on the 7th July 1986, permitting him to establish an artificial...